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Appeals Panel Decision Manual - Income Benefit Issues

Abbreviation List

Overview

There are four different types of workers' compensation income benefits in Texas: TIBs, IIBs, SIBs, and LIBs. Income benefits begin to accrue on the eighth day of disability. TIBs are paid for all periods of disability until disability ends or MMI is reached. TLC Sections 408.101 and 408.102; 28 TAC Section 129.2. An IC stops TIBs payments when an authorized doctor certifies that the IE has reached MMI, and the IC begins payment of IIBs. Once an IE is placed at MMI and assigned an IR, the IE is entitled to IIBs at a rate of three weeks of benefits for each percentage point of impairment (for example, an IR of one percent would entitle an IE to three weeks of IIBs). TLC Section 408.121. Only IEs with an IR of 15% or greater are eligible to qualify for SIBs at the end of the IIBs period. Finally, if the IE's compensable injury meets one of the requirements listed in TLC Section 408.161, the IE is entitled to LIBs.

Income Benefit Rate Calculation (I01)

Income benefits are calculated based on the IE's AWW. DWC computes the state maximum and minimum income benefit amounts on an annual basis. See TLC Sections 408.061 and 408.062. In general, income benefits have a maximum and minimum weekly amount. See 28 TAC Section 130.102(g) dealing with the calculation of SIBs. Note that the rule does not mention a minimum SIBs amount. See also 28 TAC Section 128.7 which deals with school district employees. [Cross-reference: Amount of average weekly wage (W01)].

Existence/Duration/Disability Raised by Allegation of Bona Fide Job Offer (I02)

While closely related, the issues of disability and bona fide offer of employment (BFOE) raise two separate and distinct legal questions. APD 012077. Disability deals with an IE's inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IE's pre-injury wage. Section 401.011(16). [Cross-reference: Existence/duration disability raised by other evidence (I03)]. BFOEs are addressed in Section 129.6 and deal with the IC's right to reduce TIBs based upon a properly tendered job offer to the IE. Section 129.6(g).

Whether there has been a BFOE is a separate issue from whether the IE has disability. An IC that is claiming it is entitled to reduce TIBs based upon a BFOE must specifically, and properly, raise the issue if it wants the ALJ to determine if there has been a BFOE. BFOE is not subsumed in the issue of disability. Even if it is found that a valid BFOE exists, the IE may still have disability but the IC will be allowed to deem the wages offered to be post injury earnings (PIE) and will reduce the IE's TIBs accordingly. Section 408.103(e); Section 129.6(g). When disability and BFOE are both specifically raised as disputed issues, if it is determined that there has not been a valid BFOE tendered, the job offer may still be considered by the fact finder in determining whether the IE has disability. This is so because disability ends if there is employment at the IE's preinjury wage, meeting the conditions of any medical release, that is reasonably available to the IE and that the IE has not availed himself or herself of such employment opportunity. APD 020352.

BFOE/Offer of Modified Duty.

Section 129.6(b) provides that an employer may offer an IE a modified duty position which has restricted duties which are within the IE's work abilities as determined by the IE's TD. That subsection also provides that, in the absence of a Work Status Report (DWC Form-073) by the TD, an offer of employment may be made based on another doctor's assessment of the employee's work status provided that the doctor made the assessment based on an actual physical examination of the employee performed by that doctor and provided that the TD has not indicated disagreement with the restrictions identified by the other doctor.

BFOE/Contents.

Section 129.6(c) contains the requirements for a valid BFOE. To be valid, all information contained in Section 129.6(c) must be included in the offer. APD 010110-s. To be valid, a BFOE must:

(1) Be in writing;

(2) Include a copy of the Work Status Report upon which the offer is being based;

(3) State the location at which the IE will be working;

(4) State the schedule the IE will be working;

(5) State the wages the IE will be paid;

(6) Give a description of the physical and time requirements that the offered position will entail; and

(7) Provide a statement that the employer will only assign tasks consistent with the IE's physical abilities, knowledge, and skills and will provide training if necessary.

NOTE: it is not required under the Labor Code or Section 129.6 that the offer of employment describe how an IE can perform the job activities within his or her restrictions. APD 172600. It is also not required by the Labor Code or Section 129.6 that a BFOE be communicated to the IE in his or her primary language. APD 140498. Also, while Section 129.6 does not provide for the use of a third-party vendor in sending offers of employment, where the evidence establishes that the offers were sent by the third-party vendor to the IE at the employer’s request, the offers are considered offers from the employer. APD 171296.

Additionally, nothing in Section 129.6 should be interpreted as limiting the right of an IE or an IC from requesting a BRC relating to an offer of employment. Section 129.6(h). In accordance with Section 129.6(h), DWC will find an offer to be bona fide if it is reasonable, geographically accessible, and meets the requirements of Section 129.6(b) and (c).

BFOE/Doctor/Work Status Report.

Section 129.6(f) sets out the priority of doctors' opinions on the IE's ability to return to work and what the appropriate restrictions are in the event there are Work Status Reports (DWC Form-073s) from more than one doctor. The following is the order of preference that the IC shall use in evaluating an offer of employment:

(1) The opinion of a doctor selected by DWC to evaluate the IE's work status;

(2) The opinion of the TD;

(3) The opinion of a doctor who is providing regular treatment as a referral doctor based on the TD's referral;

(4) The opinion of a doctor who evaluated the IE as a consulting doctor based on the TD's request; and

(5) The opinion of any other doctor based on an actual physical examination of the IE performed by that doctor.

The opinion of a designated doctor who has specifically been appointed by DWC to determine an IE's ability to return to work pursuant to Section 408.0041(a)(5) is presumed to be correct unless it is overcome by the preponderance of the other medical evidence to the contrary. Section 408.0041(e).

Section 129.5 relates to Work Status Reports. Section 129.5(c) requires, in part, that the DWC Form-073 be signed. An unsigned DWC Form-073/Work Status Report in connection with an offer of employment does not comply with Section 129.5(c) and therefore cannot be relied upon for purposes of Section 129.6. APD 180817.

NOTE: in accordance with amendments to Section 408.025, a TD may delegate to a PA who is licensed to practice in Texas under Chapter 204, Occupations Code, or an advanced practice registered nurse who is licensed to practice in Texas under Chapter 301, Occupations Code, the authority to complete and sign a Work Status Report regarding an IE’s ability to return to work. See Acts 2017, 85th Leg., R.S., Ch. 483 (HB 2546), Sec. 1, eff. June 9, 2017 (PA amendment). The advanced practice registered nurse amendment is effective on September 1, 2019 (HB 387 of the regular session of the 86th Texas Legislature in 2019). The delegating TD is responsible for the acts of the PA and advanced practice registered nurse under this subsection. Section 408.025(a). 

BFOE/Time to Accept/Reject.

The IC may deem the offered wages to be PIE on the earlier of the date the IE rejects the offer or the seventh day after the IE receives the offer unless the IE's TD notifies the IC that the offer made is not consistent with the IE's work restrictions. If the offer is made by mail, the IE is deemed to have received the offer five days after it was mailed. Section 129.6(g).

BFOE and Disability Distinguished.

The IE's TD released her to modified duty employment as of June 2, 2004, working a maximum of eight hours a day with certain physical restrictions. On June 2, 2004, the IE obtained a job as a parking attendant earning $6.25 an hour and working 27 hours per week. There was no evidence that the reduced hours were due to the IE's compensable injury as opposed to limited available work hours. On June 7, 2004, the employer issued a "BFOE" at $7.54 an hour as a people greeter. The ALJ stated that there was no issue of BFOE before him, and that the IE received the job offer after she was already working her new job. The ALJ determined that the IE had disability from April 24, 2004, through the date of the hearing. On appeal, the IC argued that the ALJ erred in failing to consider evidence that the employer had offered the IE a BFOE. The AP reversed and remanded the ALJ's disability determination noting that it agreed that there was no issue of BFOE before him, but disability was. The AP noted that the Labor Code does not impose on an IE the requirement to engage in new employment while still suffering from some lingering effects of the injury unless such employment is reasonably available and fully compatible with the IE's physical condition and generally within the parameters of the IE's training, experience, and qualifications. Because the ALJ refused to consider the employer's offer of employment as evidence that the IE had an ability to obtain and retain employment at the preinjury wage simply because a BFOE issue was not before him, the case was remanded to the ALJ to consider the job offer in the context of disability. APD 042385.

The disputed issues at the CCH were whether the employer made a BFOE and whether the IE had disability. The employer offered the IE modified duty employment based on a DWC Form-073 issued by the IE's TD on October 23, 2001. No evidence was presented regarding the wages being offered for the modified duty employment as compared with the IE's preinjury AWW, or the duration of the modified duty employment being offered. The IE signed and accepted the offer on October 24, 2001. The IE testified that he only worked the modified duty employment for three days because his pain did not allow him to continue. The ALJ determined that the modified duty employment offered by the employer was a BFOE, and that the IE did not have disability based only on the BFOE determination. The AP affirmed the BFOE determination and remanded the case to the ALJ for additional findings on disability. Disability and BFOE are different yet related issues. The mere fact that a BFOE has been issued does not serve to end disability where the offered wages are not equivalent to the preinjury AWW. The evidence was not clearly developed on either how the offered wages compared to the IE's preinjury AWW, or the duration of the modified duty employment offered. As such, no determination regarding disability could be made. APD 023020.

Section 129.6(c)/All Requirements Met.

When a job offer meets all of the requirements set out in Section 129.6(c), the ALJ may still determine that the offer does not constitute a BFOE because it is not a reasonable offer. Section 129.6(h); APD 020198. Whether such an offer is reasonable so as to constitute a BFOE is a question of fact for the ALJ to resolve. APD 001791.

BFOE Found.

The IE was released to modified duty employment by her TD. On November 8, 2002, the employer extended a job offer which complied with all of the requirements of Section 129.6(c) and the IE accepted it. The IE testified that she had to leave her modified duty employment on November 13, 2002, because of pain from the compensable injury. The IE's TD took her completely off work on December 9, 2002. The ALJ determined that the employer had tendered a BFOE and that the IC was entitled to adjust PIE in accordance with the offer. The ALJ stated that she did not find the IE's testimony regarding her ability to perform the modified duty employment to be credible. The ALJ further stated that the medical records did not explain why the IE could not perform the modified duty employment, or what aspects of the same would aggravate her condition. The fact that an IE is taken completely off work does not automatically void a BFOE. Since the ALJ was not persuaded that the IE could not perform the work provided under the modified duty restrictions of the BFOE, the ALJ could conclude that the BFOE remained valid and that the IC was entitled to reduce the IE's TIBs by the amount deemed to be PIE. APD 031290.

BFOE Not Found.

The ALJ found that, while the IE accepted the employer’s written offer of modified duty employment, when she reported to work, the actual duties assigned to the IE exceeded the restrictions found in the DWC Form-073 (Work Status Report) that formed the basis for the employer’s offer. The ALJ determined the employer had made a BFOE to the IE, but that the employer effectively rescinded the offer on the day it was made and that the IC was therefore not entitled to adjust PIE. The AP reversed the ALJ’s determination that the employer had made a BFOE and rendered a new decision that it had not made a BFOE to the IE. The AP wrote that, as the duties assigned to the IE exceeded the restrictions of the DWC Form-073, the employer did not make a BFOE. APD 111191.

BFOE Not Found.

The IE's preinjury schedule was from 2:00 p.m. to 10:00 p.m. because of childcare considerations. The employer tendered a job offer with scheduled hours of 7:00 a.m. until 3:30 p.m., with an additional provision that she work Saturdays from 6:00 a.m. to 2:00 p.m. The IE testified that she attempted to work out an arrangement with her employer that would more closely accommodate the daycare schedule and that she offered to work at a different facility of the employer which was closer. The employer responded that the IE had to work at the facility where she was injured. The ALJ determined that the employer had made a BFOE, and noted that there is no requirement that the light duty be "temporally convenient" to the IE. The AP reversed and rendered a decision that the employer had not issued a BFOE in conformity with Section 129.6. Section 129.6 does not require an IE to adapt to a significantly different schedule than the one on which she was employed at the time of her injury. APD 001502.

BFOE Found.

Prior to his compensable injury, the IE was employed to do oil changes. The IE's TD later released him to restricted duty by means of two DWC Form-073s, one approximately two months post injury and another approximately five months post injury. Pursuant to the later DWC Form-073, the employer tendered a valid BFOE as a service writer. The IE rejected the offer without attempting to do the job, stating that his restrictions precluded him from looking down to write. There was evidence that the orders were written on an "electronic clipboard" that could be held at any height, sitting or standing. The employer next offered the IE a job as a greeter which he turned down on his "attorney's instructions." The ALJ determined that the employer had offered a valid BFOE entitling the IC to adjust TIBs. The ALJ stated that he was not persuaded by the IE's assertion that the offered jobs fell outside of his TD’s restrictions. The ALJ’s determination that the employer had tendered a BFOE to the IE was affirmed. APD 010577.

Section 129.6(c)/Not All Requirements Met.

If all of the requirements of Section 129.6(c) are not met, there can be no BFOE as a matter of law. The following are examples of employment offers which were determined not to be BFOEs:

The employment offer failed to state the location at which the IE would be working as required by Section 129.6(c)(1). APD 041082.

The employment offer failed to state the IE's work schedule as required by Section 129.6(c)(2). APD 020198.

The employment offer failed to state the wages which the IE would be paid as required by Section 129.6(c)(3). APD 042864.

The employment offer failed to state a description of the physical and time requirements that the position would entail as required by Section 129.6(c)(4). APD 020198.

The employment offer failed to state that the employer will only assign tasks consistent with the IE's physical abilities, knowledge, and skills and will provide training if necessary as required by Section 129.6(c)(5). APD 010110-s.

Existence/Duration of Disability Raised by Other Evidence (I03)

Disability is defined as an IE's inability, because of a compensable injury, to obtain and retain employment at wages equivalent to the IE's pre-injury wage. TLC Section 401.011(16). Before disability can be established, the IE must first prove they sustained a compensable injury. APD 023210. The ALJ must consider all of the conditions which comprise the compensable injury when making his or her determination of disability. APD 201283.

The IE has the burden to prove that disability exists. The existence of disability depends upon whether the IE is earning less money at work as a result of the compensable injury. APD 032579.

This means that the IE must show, by a preponderance of the evidence, that the compensable injury is a cause of his or her reduced wages. APD 012870.

There can be many causes for an IE to be unable to earn their pre-injury wage. The IE does not need to prove that the compensable injury is the sole cause of the reduced wages, the IE must only prove that the compensable injury is one of the causes. APD 032851.

After a compensable injury, an IE may have many different periods of disability. Whenever the IE is not working, or is working and earning less than the pre-injury wages because of the compensable injury, disability begins; then, disability will end when the IE begins to earn wages equal to or more than the IE's pre-injury wage. APD 032725. When an IE has returned to work after an injury and has earned wages that they contend are less than his or her prior wage, a determination of the amount of the pre-injury AWW is essential to an accurate analysis of the disability issue and is effectively subsumed in that issue. APD 211214.

Dates of Disability

When there is a dispute about disability, the period in dispute begins the day after the date of the injury and continues through the date of the CCH unless the dates for the periods of disability are included in the statement of the issue. Once disability has been litigated through a CCH and an accrual date for income benefits has been established and finalized, that date cannot be changed through a subsequent CCH. The doctrine of res judicata prevents the relitigation of issues which have been resolved in prior suits. Barr v. Resolution Trust Corp., 837 S.W. 2d 627 (Tex. 1992).

The AP has reversed and remanded as incomplete the decision of an ALJ who failed to properly determine the entire disability period before them. APD 201870. A decision by an ALJ on disability that goes beyond the disability period in dispute is subject to reversal by striking the excess period from the decision. APD 230114, APD 230369, and APD 230723.

At a CCH held on June 15, 2004, an issue was "Did the [IE] have disability resulting from an injury sustained on (Date of Injury), and if so, for what periods?" No stipulations were made with regard to the period from (Date of Injury), to January 14, 2004. [At the June 15, 2004 CCH, the IE requested disability from January 14, 2004, through the date of the CCH.] The hearing officer's decision on June 17, 2004, concluded that the IE had disability from January 14, 2004, through the date of the CCH. The IC appealed the decision, asserting that the IE did not establish disability from January 14, 2004, through the CCH. The IC did not argue that there was prior disability from (Date of Injury), through January 14, 2004. The AP affirmed the ALJ's decision. In a subsequent CCH, the primary issue was "What is the date of maximum medical improvement (MMI) pursuant to Section 401.011(30)(B), the expiration of 104 weeks from the date on which income benefits began to accrue?" The IE argued that the issue was res judicata, because the beginning date of disability was established in the prior hearing. The IC claimed that res judicata did not apply, and that the IE had a compensable injury resulting in periods of disability beginning August 21, 2002. The ALJ determined that the IE chose not to litigate the entire period of disability in the prior CCH and that income benefits began to accrue on August 21, 2002, and statutory MMI occurred on August 16, 2004. The AP reversed and rendered a decision that the date that income benefits began to accrue was January 21, 2004, and the date of statutory MMI under Section 401.011(30)(B) was January 19, 2006. APD 050120-s.

Evidence That Disability Exists

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed ALJ's CCH determination regarding disability. For each of these fact circumstances there are cases where an ALJ reached the opposite result because the ALJ did not believe the evidence presented by one of the parties.

Restricted-Duty Release or Removal from Work

A doctor's report that an IE cannot work because of the compensable injury is evidence of disability. A doctor's report that restricts the IE's activities and prevents them from doing the job that they did at the time of the injury, so that they are earning less money than the AWW, is also evidence of disability. APD 030927. If an IE has been returned to work with restrictions, they do not have to prove that there is no work available that would fit their restrictions to establish disability. APD 941249. An IE under a restricted duty release does not have to look for work for purposes of establishing disability. APD 030927, above.

Standard of Review

Whether an IE has disability is a question of fact for the ALJ to decide. Disability can be proven by the IE's CCH testimony alone. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref'd n.r.e.); APD 032940. However, the testimony of an IE, as an interested party, only raises issues of fact for the ALJ to resolve and is not binding on the ALJ. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.—Beaumont 1978, writ ref'd n.r.e.); APD 032579.

The ALJ is the sole judge of the weight and credibility to be given to the evidence that is presented at the CCH. Section 410.165(a) . The ALJ is the trier of fact and resolves the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.—Amarillo 1974, no writ). This is equally true regarding the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.—Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.—Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.—Fort Worth 1947, no writ). For example, depending on the evidence presented, an ALJ may choose not to believe that an IE actually has the physical limitations requiring the restrictions that any given doctor placed on them. APD 023176. This is equally true when a doctor asserts that the IE has no restrictions at all. APD 031749.

Medical Care

Evidence that an IE is still undergoing treatment for the compensable injury can support a claim for disability. APD 032661.

Medication

The ALJ may consider past, present, and recommended future treatment in determining if disability exists and for what time period. The ALJ may consider the effects of any medications an IE is taking for the treatment of the compensable injury. APD 92299.

Pain

An ALJ may consider the level of pain an IE is experiencing, and how that may affect the IE's ability to work. APD 001437.

Evidence that Disability Does Not Exist

 

Abandonment of Medical Treatment

[Cross-references: Abandonment of Medical (I18) (for Texas A&M employees, Section 502.067; for University of Texas employees, Section 503.067; for Department of Transportation employees, Section 505.057)].

Immigration Status

An IE's status as an undocumented immigrant is not a bar to receiving benefits under the 1989 Act. Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d. 635 (Tex. Civ. App.—El Paso 1972, writ ref'd n.r.e.); APD 022258-s. However, if an IE returns to work (even at light duty) and they are later terminated, laid off, or they quit, and the evidence shows that their medical condition has not changed, the IE may not establish disability if the sole reason they cannot get other employment is because of their status as an undocumented immigrant. APD 000529.

Full-Duty Release

If an IE is given a full-duty release, the ALJ may consider that in reaching a determination regarding disability. APD 032215.

Incarceration

Because disability is an economic concept, an IE cannot have disability for any period of time that the IE is incarcerated. This is so because the inability to earn the pre-injury wage is attributable to the incarceration, not the compensable injury. APD 023069.

Resignation

When an IE returns to work under a restricted-duty release and later resigns, disability ends if the ALJ determines that the IE is earning less than the AWW because they resigned. APD 041917. An IE's voluntary resignation is a factor that the ALJ may consider, but resignation does not automatically preclude a finding of disability. APD 021818.

Reasonable Availability of Employment

An IE under a restricted-duty release is not required to look for work or prove that work is not available within the restrictions for purposes of establishing disability. However, even if the IE is under a doctor's restricted medical release to work, disability may end if the IE is able to obtain and retain employment at wages equivalent to the preinjury wage. APD 91045. In order for disability to end, the evidence must show that the IE has not availed themselves of reasonably available employment opportunities that provide wages equivalent to the preinjury wage and are within the IE’s medical restrictions. APD 020352. [Cross-reference: Existence/Duration/Disability Raised by Allegation of Bona Fide Offer (I02)].

Retirement

An IE's voluntary retirement from his or her pre-injury employer is evidence that disability has ended. APD 021818. Retirement is a factor for the ALJ to consider in determining whether the IE has disability. The mere fact that an IE retires after the date of injury does not automatically preclude a finding of disability after the retirement date. If the IE can prove that the compensable injury is still a cause of the inability to earn pre-injury wages after retirement, disability exists. APD 022499.

Salary Continuation

TLC Section 408.003(f) provides that “[s]alary continuation payments made by an employer for an employee's disability resulting from a compensable injury shall be considered payment of income benefits for the purpose of determining the accrual date of any subsequent income benefits” under the 1989 Act. The AP has held that an IE who continues to receive his or her salary from the employer after the injury but does not work may still have disability because the IE was not performing personal services for the employer in exchange for the salary continuation. APD 201642.

Sole Cause

Disability ends if the IC can prove that a non-compensable preexisting condition or intervening injury (or some other factor unrelated to the compensable injury) is the sole cause of the IE's inability to earn the pre-injury wage. APD 032713. Sole cause is an affirmative defense. APD 971727. Because sole cause is an affirmative defense, an IC that raises sole cause as a defense must specifically plead the issue and has the burden of proof. Texas Employers Insurance Association v. Page, 553 S.W.2d 98 (Tex. 1977); Texas Workers' Compensation Fund v. Mandlbauer, 988 S.W.2d 750 (Tex. 1999).

Termination

When an IE returns to work under a restricted duty release after the injury and is later terminated, the question becomes whether it was the termination or the injury that caused the inability to obtain or retain preinjury wages. In such a case, an IE's termination may end disability. APD 032971. Termination for cause does not necessarily preclude disability, but the ALJ may consider it in determining why an IE is unable to earn the preinjury wage. Thus, disability continues after termination if the compensable injury was a cause of the inability to earn the preinjury wage after termination. APD 032767.

Unemployment Benefits Application/Payment

An IE's application for and receipt of unemployment benefits does not necessarily preclude a finding of disability. Aetna Casualty & Surety Co. v. Moore, 386 S.W.2d 639 (Tex. Civ. App.—Beaumont 1964, writ ref'd n.r.e.); APD 032289. Application for and receipt of unemployment benefits are factors the ALJ can consider to determine disability. APD 032129.

Return-to-Work Guidelines

ICs, health care providers, and employers shall use the disability duration values in the current edition of The Medical Disability Advisor, Workplace Guidelines for Disability Duration (MDA) as guidelines for the evaluation of expected or average return to work time frames. 28 Texas Admininstrative Code (TAC) Section 137.10(a) . The DWC return-to-work guidelines provide disability duration expectancies, and those expectancies are presumed to be a reasonable length of disability duration. 28 TAC Section 137.10(c) . However, the disability duration values in the guidelines are not absolute values and do not represent specific lengths or periods of time at which an IE must return to work; rather, the values represent points in time at which additional evaluation may take place if full medical recovery and return to work have not occurred. 28 TAC Section 137.10(e).

Income Benefits Accrual Date (I04)

"Accrual date" means the day an IE's income benefits begin to accrue. 28 TAC Section 124.7(a). Income benefits do not begin to accrue until the eighth day of disability. 28 TAC Section 124.7(b); APD 032435. [Cross-reference: Existence/Duration of Disability Raised by Other Evidence (I03)]. Income benefits may not be paid for an injury that does not result in disability for at least one week. TLC Section 408.082(a). If the IE has not sustained disability for at least one week, there is no accrual date for TIBs. APD 200483.

If the disability continues for longer than one week, weekly income benefits begin to accrue on the eighth day after the date of the injury. If the disability does not begin at once after the injury occurs or within eight days of the occurrence but does result subsequently, weekly income benefits accrue on the eighth day after the date on which the disability began. TLC Section 408.082(b). For dates of injury occurring before September 1, 2005, if the disability continues for four weeks or longer from the date the disability began, the income benefits shall be computed from the date disability began. For dates of injury occurring on or after September 1, 2005, if the disability continues for two weeks or longer after the date the disability begins, the income benefits shall be computed from the date the disability begins. TLC Section 408.082(c).

TLC Section 408.082(b) and (c) make it clear that accrual of income benefits payable for disability begins "after the date of injury." APD 180300. In that case, the AP affirmed as reformed the decision of an ALJ finding that the IE had disability beginning on a date preceding the date of injury, noting that accrual of income benefits did not begin until after the date of injury.

Date of MMI (I06)

[Cross-reference:Impairment rating (I07)]

The date of MMI is significant for several reasons. Once an IW reaches MMI, he or she is no longer entitled to TIBs. Section 408.101(a). An IW cannot be assigned an IR until he or she reaches MMI. Section 130.1(b)(2).

MMI means the earlier of:

(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;

(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or

(C) the date determined as provided by Section 408.104 (relating to extension of the 104 weeks due to spinal surgery). Section 401.011(30); Section 130.1(b)(1).

An IW may be found to be at the statutory date of MMI (the expiration of 104 weeks from the date on which income benefits begin to accrue) even though he or she requires additional and/or continuing medical care and treatment. An IC may not stop paying for required medical care related to the IW's work-related injury merely because the IW has reached MMI. Section 408.021.

Certification of MMI.

The information in this section only relates to the certification process. The dispute process is contained in the section that follows.

Authorized Doctor.

Section 130.1(a) provides in part that only an authorized doctor may certify MMI. The following may be authorized to certify MMI if Section 130.1(a)(1)(B) is complied with:

(i) the IW's treating doctor (or a doctor to whom the treating doctor has referred the IW for evaluation of MMI and/or IR in the place of the treating doctor, in which case the treating doctor is not authorized);

(ii) a designated doctor; or

(iii) a RME doctor selected by the IC and approved by the Division to evaluate MMI and/or IR after a designated doctor has performed such an evaluation.

Doctor Authorized to Certify MMI.

The HO refused to adopt Dr. D's certification solely because Dr. D was a chiropractor. The AP reversed and remanded the case to the HO for further explanation as to why he refused to adopt Dr. D's certification. There was no allegation or evidence that Dr. D was not an authorized doctor. APD 042239.

Doctor Not Authorized to Certify MMI.

The designated doctor was no longer on the Designated Doctor List; however, a letter of clarification from the Commission (now Division) was sent to the designated doctor asking whether he should change his certified MMI date and assigned IR because the IW had surgery after the designated doctor examined the IW. The designated doctor responded that his opinion had not changed. Relying on the designated doctor's response to the letter of clarification, the HO adopted the designated doctor's certification. The HO's decision was reversed and remanded. At the time the designated doctor responded to the letter of clarification he was no longer authorized to act in that capacity because he was no longer on the Designated Doctor List as required by Section 180.21(a) (now Section 180.21(b)). Because the doctor was not authorized to act as the designated doctor at the time he responded to the letter of clarification, the case was remanded for the appointment of a second designated doctor. APD 040683.

Date Not Prospective.

The date of MMI may not be prospective or conditional; however, it may be retrospective to the date of the certifying exam. Section 130.1(b)(4)(C)(i) and (ii).

The treating doctor's report dated March 16, 1994, certified that the IW would reach MMI on March 21, 1994, with a 19% IR. The HO correctly determined that this report could not be adopted because it contained a prospective MMI date. Ausaf v. Highlands Insurance Company, 2 S.W.3d 363 (Tex. App.-Houston [1st District] 1999, pet. denied).

Physical Examination.

A certification of MMI must be based upon a complete medical examination of the IW for the explicit purpose of determining MMI. Section 130.1(b)(4)(B).

The IW's treating doctor certified that he was at MMI on January 21, 2000, with a 4% IR. The IW disputed the certification and a designated doctor was appointed. The designated doctor examined the IW, and determined that he reached MMI on March 13, 2000, with a 5% IR. The IW underwent a series of injections and physical therapy in July 2000, and testified that his condition improved by 60%. On August 9, 2000, the designated doctor was sent additional medical reports and asked if they changed his opinion regarding MMI and IR. On August 14, 2000, without physically re-examining the IW, the designated doctor responded changing his date of MMI to August 14, 2000, and maintaining the 5% IR. The HO gave the designated doctor's amended report presumptive weight and adopted it. The case was reversed and remanded back to the HO because the amended certification of MMI was done without a medical examination in violation of Section 130.1(b)(4)(B). APD 010297-s.

Signed.

In order to be valid, a certification of MMI and IR must be signed by the certifying doctor. The certifying doctor may use a rubber stamp signature or an electronic facsimile signature of the certifying doctor's personal signature. Section 130.1(d)(1)(A).

The IW was examined by a referral doctor for the purpose of determining MMI and IR. The examining doctor placed the IW at MMI as of the date of the examination with a 5% IR. The report containing the certification was not signed by the certifying doctor, but instead an unidentified individual signed the report "for" the certifying doctor and initialed the signature. This same individual also signed the treating doctor's name indicating agreement with the certification. The HO determined the certification was valid and had become final because the individual that signed and initialed the document on the examining doctor's behalf was an "apparent agent" of the certifying doctor. The AP reversed and rendered a decision that the certification was not valid, and therefore could not become final. Section 130.12(c)(3) provides that in order for a certification to be valid, it must contain the signature of the authorized certifying doctor. Section 130.1(d)(1)(A) defines what constitutes a valid signature. There are no provisions that allow an "agent" to sign the certification for the certifying doctor. APD 042044-s; see also APD 171412.

Not at MMI.

The HO determined that the IW has not reached MMI, and because the IW has not reached MMI no IR may be assigned. The HO explained in the Discussion portion of the decision that “[b]ecause [the] [c]laimant has not received all medically necessary treatment for the compensable injury, she has not attained [MMI].” The AP stated that although there are medical records recommending the IW undergo surgery at L4-5, there is no medical record in evidence from a doctor stating that the IW has not reached MMI due to the proposed surgery. The DD appointed to determine MMI and IR, and therefore entitled to presumptive weight, opined that the surgery would not be beneficial for the IW at the time of his October 3, 2014, MMI/IR certification. The RME doctor also opined that the IW did not meet the criteria per the ODG for surgery at the time of his December 8, 2014, MMI/IR certification. Therefore, the AP reversed the HO’s determinations that the IW has not reached MMI, and because the IW has not reached MMI no IR may be assigned. APD 150750.

The HO held that the IW’s compensable injury consisted of a lumbar sprain/strain, the IW has not yet reached MMI, and therefore, no IR is assigned as certified by Dr. K, a referral doctor. Dr. K issued alternate reports that the IW had not reached MMI. Dr. K’s first certification is based on a lumbar sprain/strain, and the second certification is based on a lumbar sprain/strain, disc bulges at L4-5 and L5-S1, and the SI joint. In his narrative report, Dr. K stated that the IW was not at MMI regarding the lumbar strain/sprain because the IW most likely would benefit from an SI injection on the left and he could possibly benefit from a repeat L4-5 injection. The AP noted that the parties neither stipulated to nor actually litigated an SI joint condition, and the HO’s determination that the compensable injury does not extend to disc bulges at L4-5 and L5-S1 has not been appealed and has become final. There was no evidence establishing that the recommended injections are treatment for the lumbar sprain/strain. Although Dr. K stated that his first MMI/IR certification is based on a lumbar sprain/strain, Dr. K opines that the IW has not reached MMI based on recommended injections for conditions that have not been determined to be part of the compensable injury. Therefore, the HO’s determination that the IW has not reached MMI was reversed. APD 160057

Dispute of MMI.

A party must dispute the first valid MMI date certified by an authorized doctor within 90 days of written notice through verifiable means. The notice must contain a copy of a valid DWC-69. If a party fails to so dispute the certified MMI date may become final. [Cross-reference: IR finality/90 day disputes (I12)].

Extension of MMI.

An extension of MMI under Section 408.104 applies only to claims based on a compensable injury occurring on or after January 1, 1998, and only where spinal surgery has been approved or actually occurred in the 12-week period prior to the IW's statutory MMI date. Section 408.104; §126.11(a). The Division looks to the factors listed in §126.11(f) in determining approval or denial of an extension request. See §126.11 for specific requirements in requesting an extension of MMI under Section 408.104.

Invalid Extension.

The IW had spinal surgery on 9/13/00, and Commission (now Division) personnel believed the IW would reach statutory MMI on 10/25/00. Commission personnel assisted the IW in timely submitting a request to extend his MMI pursuant to Section 408.104. On 11/29/00, the Commission issued an order extending the IW's MMI to 2/10/01 and notifying both parties of the right to dispute by requesting a BRC within 10 days; neither party disputed the order. The IW later discovered a mistake had been made in calculating his statutory MMI, and the correct date should have been 4/28/01. The Commission sent a letter dated 4/24/01 correcting the statutory MMI date to 4/28/01. The HO determined the IW reached statutory MMI on 4/27/01 by operation of law. The IC appealed, arguing that the 11/29/00 order established the MMI date because the IW failed to dispute the order. The AP affirmed the HO, stating it would be error to allow an erroneously extended MMI date prior to the actual statutory MMI date. APD 011840-s.

Valid Extension.

The parties stipulated at the CCH that the claimant sustained a compensable injury on (Date of Injury); that the IW's statutory MMI was 11/15/02; that the IC approved spinal surgery on 10/23/02; and that the IW had spinal surgery on 11/4/02. The HO extended the IW's MMI for six months based on medical evidence that recovery time from multilevel spinal fusions vary from six months to one year. The AP affirmed the HO's determination. APD 032328.

Dispute of Extension Approval.

A party wishing to dispute the extension of statutory MMI must file a request for a BRC under §141.1 within ten days after the date the order is received. §126.11(g). Failure to timely file a request for a BRC results in waiver of the right to dispute the extension order. §126.11(h). This is true even if the Division does not issue the extension order within 10 days as required under §126.11(b). APD 042275-s.

MMI Dispute.

§126.11(i) discusses the effect of a doctor's certification of MMI dated between the date the Division extension order was issued and the extended date of MMI specified in the Division order. However, a Division extension order that is not disputed will supercede all certifications of MMI done prior to the issuance of the Division order. APD 020187-s.

Impairment Rating (I07)

IR means the percentage of permanent impairment of the whole body resulting from a compensable injury. Section 401.011(24); Section 130.1(c)(1) . Impairment means any anatomic or functional abnormality or loss existing after MMI that results from a compensable injury and is reasonably presumed to be permanent. Section 401.011(23). The doctor evaluating permanent impairment must consider the entire compensable injury. APD 043168. If the doctor evaluating impairment determines there is no permanent impairment from the compensable injury a zero percent IR or no impairment is assigned. APD 991083; Section 130.1(c)(1). The doctor assigning the IR shall provide a description and explanation of specific clinical findings related to each impairment, including 0% ratings. Section 130.1(c)(3)(D)(i).

IIBs are based on the IW's IR. Section 408.121(b) . IIBs begin on the day after the IW reaches MMI and end on the earlier of: a period computed at the rate of three weeks for each percentage point of impairment; or the IW's death. Section 408.121(a). IIBs are paid at 70% of the IW's AWW, subject to Sections 408.061 and 408.062 relating to maximum and minimum weekly income benefits. Section 408.126. [Cross reference: Amount of AWW (W01)]. An IW may not recover IIBs unless evidence of impairment based on an objective clinical or laboratory finding exists. Section 408.122.

IIBs may be reduced for contribution under Section 408.084. [Cross-reference: Reduction/Suspension of IIBs or SIBs for Contribution from Prior Compensable Injury (I15)].

MMI must be certified before an IR is assigned. Section 408.123(a); 130.1(b)(2). [Cross-reference: Date of MMI (I06)]. Only permanent impairment may be rated. APD 030091-s. The Guides 4th Ed. p. 3/94 describe a permanent impairment as one that is "stable, unlikely to change within the next year, and not amenable to further medical or surgical therapy." An IR's assignment shall be based on the IW's condition as of the MMI date, considering the medical record and the certifying examination. Section 130.1(c)(3); APD 040313-s; APD 040998-s. A doctor who certifies that an IW has reached MMI shall assign an IR for the current compensable injury using the rating criteria contained in the appropriate edition of the Guides. Section 408.124; Section 130.1(c)(2).

Appropriate AMA Guides Edition.

Section 130.1(c)(2) discusses the appropriate Guides edition to use in determining the IR for a compensable injury. The appropriate edition to use for certifying examinations conducted on or after October 15, 2001, is the Guides 4th Ed. Section 130.1(c)(2)(B)(i). However, the Guides 3rd Ed. is the appropriate edition to use if at the time of the certifying examination there is a certification of MMI by a doctor made prior to October 15, 2001, which has not been previously withdrawn through agreement of the parties or previously overturned by a final decision. Section 130.1(c)(2)(B)(ii); APD 061227.

The Guides 4th Ed.

 

Adjustments for Effects of Treatment or Lack of Treatment.

The DD assigned 1% impairment for "lack of treatment" referencing page 2/9 of the Guides 4th Ed. based upon his belief that the IW did not receive as much physical therapy as called for by the ODG. The HO adopted the DD's rating, which included the 1% impairment for "lack of treatment." The AP reversed the HO's IR determination and remanded the case back to the HO. The AP determined that the Guides 4th Ed. do not consider whether an IW has undergone the requisite number of physical therapy session in assessing additional impairment under the section the DD relied upon. The AP therefore held that the Guides 4th Ed. do not allow for assessment of additional impairment under the facts of this case. APD 090692-s.

Advisories 2003-10 and 2003-10B.

The issue at the CCH was the IW's IR. The IW sustained a compensable back and neck injury. The IW had a multi-level cervical fusion prior to the date of MMI. The DD certified that the IW reached MMI with a 10% IR, assessing 5% impairment for the neck injury under DRE Cervicothoracic Category II and 5% impairment for the back injury under DRE Lumbosacral Category II. In response to a LOC the DD changed the IR to 25% placing the IW in DRE Cervicothoracic Category IV based on Division Advisory 2003-10. The HO determined that the IW's IR is 25% and the IC appealed. The AP reversed the HO's decision and rendered a decision that the IW's IR is 10%. Division Advisories 2003-10 and 2003-10B were declared invalid and their application an ultra vires act in Texas Dep't of Ins. v. Lumbermens Mutual Cas. Co., 212 S.W.3d 870 (Tex. App.-Austin 2006, pet. denied). The Texas Supreme Court denied the petition for review in the Lumbermens case on June 15, 2007. Therefore, the adoption of an IR that is based on the Advisories is legal error and must be reversed. Prior APDs applying the Advisories to rate impairment for spinal fusion have been overruled by the Lumbermens case. APD 071023-s.

Commissioner's Bulletin #B-0033-07 dated July 18, 2007, withdrew Advisories 2003-10 and 2003-10B.

Conflict Between General Directions and Figures.

Where a conflict exists between the general directions and the figures in the Guides, the general directions control. In this case the IW had a wrist injury and the DD rated radial and ulnar deviation relying on Figure 29, which rates impairment based on 5 degree increments. However, the general directions for rating radial and ulnar deviation provide that the measurements be rounded to the nearest 10 degrees. Because the general directions control, the measurements for radial and ulnar deviation should be rounded to the nearest 10 degrees, not 5 degrees as provided in Figure 29. APD 022504-s.

General Directions Point Elsewhere for Further Clarification.

The HO's determination of the IW's IR was based solely on the fact that the atrophy found was not greater than 2 centimeters but rather 2 centimeters exactly. In reversing and remanding the HO's determination, the AP noted that although the general directions control when a conflict exists between the general directions and the figures in the Guides 4th Ed., in the instant case the general directions for rating lumbosacral radiculopathy on page 3/102 of the Guides 4th Ed. specifically refer to differentiator 3 in Table 71 on page 3/109 of the Guides 4th Ed., which gives a further description of "Decreased circumference, atrophy." Differentiator 3 clarifies that for atrophy to be a significant sign of radiculopathy, for which the IW is entitled to receive a rating, the atrophy must be spine-injury-related and the measurements show loss of girth of 2 centimeters or more above or below the knee. The AP clarified that to receive a rating for radiculopathy the IW must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 centimeters or more above or below the knee, compared to measurements on the contralateral side at the same location, and the atrophy or loss of relevant reflexes must be spine-injury-related. APD 072220-s.

Guarding as a Differentiator.

Table 71, page 109 of the Guides 4th Ed. states "[p]aravertebral muscle guarding or spasm or nonuniform loss of [ ROM], dysmetria, is present or has been documented by a physician." [Emphasis added]. Because the word "or" is placed between guarding, spasm, and nonuniform loss of ROM, those terms are read as being separate from each other, and the Guarding portion of Table 71 is interpreted as saying guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm, and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. APD 080966-s.

Hernia.

To assess an impairment for a hernia-related injury under Table 7 "Classes of Hernia-related Impairment", page 10/247 of the Guides 4th Ed., there must be a palpable defect in the supporting structures of the abdominal wall. APD 072253-s.

Lower Extremity Impairment.

The IW sustained a compensable supracondylar fracture of the left knee. The DD measured 48 degrees of angulation and used a DRE under Table 64 of the Guides 4th Ed. and assessed a 28% IR for a displaced supracondylar fracture. The DD was advised in a LOC that an angulation over 20 degrees for a supracondylar displaced fracture results in a maximum whole person IR of 20%; however, the DD did not change his IR of 28%. The RME doctor and another doctor measured 3 degrees of angulation and the RME doctor assessed an 8% IR under Table 41 using the ROMM. The HO determined that the IW's IR was 20%. The AP reversed the HO, finding that the HO erred in determining that the IW's IR is 20% because no doctor had certified a 20% IR, and rendered a decision that the IW's IR is 8% as certified by the RME doctor. The AP also held that the DD erred in determining the IW's 28% IR, because the plain language of the Guides 4th Ed. indicates that between 5 to 9 degrees of angulation results in 5% whole person impairment; between 10 to 19 degrees of angulation results in 10% whole person impairment; and 20 degrees or more of angulation results in 10% whole person impairment plus 1% whole person impairment for each degree of angulation up to 20% maximum whole person impairment. APD 061479-s.

Mental Impairment.

Mental and behavioral disorders may be rated for impairment under the Guides 4th Ed. Although Chapter 14 does not provide impairment percentages in the Table entitled "Classifications of Impairments Due to Mental and Behavioral Disorders", the certifying doctor may consider Chapter 4 relating to the Nervous System to calculate the impairment percentage for mental and behavioral disorders from Chapter 14. Chapter 4 at page 142, first column, provides that the criteria for evaluating the emotional and behavioral impairments in Table 3 of Chapter 4 relate to the criteria for mental and behavioral impairments in Chapter 14. APD 051277. An IR for a mental or behavioral disorder must be supported by objective clinical or laboratory findings. APD 961699. The mental or behavioral disorder must be permanent to be rated for impairment. APD 030622.

Skin Impairment.

Impairment for a skin disorder under Chapter 13 may be combined with impairment for loss of ROM under Chapter 3 using the CVC to determine total impairment. APD 031168.

Impairment for a skin disorder under Chapter 13 may be combined with peripheral nerve impairment under Chapter 4 using the CVC to determine total impairment. APD 071599-s.

Spine Impairment.

The evaluator assessing the IW's spine for assigning an IR should use the Injury Model, which is also called the DRE Model. The conditions within the DRE categories are listed in Table 70 on page 108 of the Guides 4th Ed. Under the Guides 4th Ed., if a doctor determines that an IW meets the criteria to be placed in a particular DRE category, the doctor is to assign the IR set out in the Guides for that particular DRE category. APD 032336-s.

In the event the evaluating doctor must choose between two or more DRE categories that may apply, the ROMM may be used in conjunction with the DRE Model as a "differentiator" to make that choice. APD 022509-s. The evaluating doctor may not merely choose a rating between DRE categories. APD 032336-s.

If none of the categories of the DRE Model are applicable the evaluating doctor may use the ROMM for assigning the IR. The doctor's report must have a specific explanation why the DRE Model could not be used. APD 030288-s. A comment that the evaluator merely prefers "to use the Model that he or she feels is most appropriate" is insufficient justification for using the ROMM rather than the DRE Model." APD 030288-s.

The HO's determination of the IW's IR was based solely on the fact that the atrophy found was not greater than 2 centimeters but rather 2 centimeters exactly. In reversing and remanding the HO's determination, the AP noted that although the general directions control when a conflict exists between the general directions and the figures in the Guides 4th Ed., in the instant case the general directions for rating lumbosacral radiculopathy on page 3/102 of the Guides 4th Ed. specifically refer to differentiator 3 in Table 71 on page 3/109 of the Guides 4th Ed., which gives a further description of "Decreased circumference, atrophy." Differentiator 3 clarifies that for atrophy to be a significant sign of radiculopathy, for which the IW is entitled to receive a rating, the atrophy must be spine-injury-related and the measurements show loss of girth of 2 centimeters or more above or below the knee. The AP clarified that to receive a rating for radiculopathy the IW must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 centimeters or more above or below the knee, compared to measurements on the contralateral side at the same location, and the atrophy or loss of relevant reflexes must be spine-injury-related. APD 072220-s.

The significant clinical signs of radiculopathy may be verified by electrodiagnostic testing; however, electrodiagnostic testing indicating radiculopathy is insufficient by itself to assign impairment for radiculopathy in the absence of significant signs of radiculopathy (loss of relevant reflexes or unilateral atrophy). APD 051456.

In using the DRE Model, the doctor should select the region primarily involved and rate that region. If the injury is primarily to the cervical spine the rating would be for cervicothoracic spine impairment; if the injury was primarily to the thoracic spine the rating would be for thoracolumbar spine impairment; and if the injury is primarily to the lumbar spine the rating would be for lumbosacral spine impairment. If more than one spine region is impaired, the doctor determines the impairment of the other regions and combines the regional impairments using the CVC to express the total spine impairment. Guides 4th Ed. p. 95 and 101; APD 051306-s.

Table 71, Guides 4th Ed., p. 109, lists DRE Impairment Category Differentiators. The Guarding portion of Table 71 states "muscle guarding or spasm or nonuniform loss of ROM." (Emphasis added) By placing the word "or" between guarding, spasm and nonuniform loss of ROM, those terms are in the disjunctive. The AP held that guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator. Further, normal ROM does not preclude awarding a 5% IR for guarding under DRE Cervicothoracic Category II: Minor Impairment under the Guides 4th Ed. APD 080966-s.

Syncope.

Syncope is rated for impairment under Table 22 entitled "Impairments Related to Syncope or Transient Loss of Awareness" on page 4/152 of the Guides 4th Ed., and not under Table 5 on page 4/143. APD 042912-s.

Upper Extremity Impairment.

It is undisputed by the parties that the IW underwent a distal clavicle resection arthroplasty for the compensable injury. Dr. E, the prior DD assigned 4% impairment based on loss of range of motion (ROM) of the IW’s left shoulder.  Dr. E explained he did not assign an impairment under Table 27 on page 3/61 of the AMA Guides for the IW’s distal clavicle resection arthroplasty because of guidance from the Division to consider the final result of the IW in determining whether to assign impairment for the distal clavicle resection arthroplasty.  The HO stated that because Dr. E did not give a rating for the distal clavicle resection arthroplasty, the IW was sent to a new DD to address the IW’s IR. The HO adopted the new DD’s certification who assessed 6% UE impairment for loss of ROM of the IW’s left shoulder, and 10% UE impairment for the distal clavicle resection arthroplasty under Table 27 of the AMA Guides, for a combined UE impairment of 15%, which converts to 9% whole person impairment. In affirming the HO’s determination, the AP noted that Table 27, Impairment of the UE After Arthroplasty of Specific Bones or Joints, falls under Section 3.1m.  When considering the language on page 3/58 in isolation it would appear that a distal clavicle resection arthroplasty would receive a 10% UE rating under Table 27 only if the other criteria provided in the AMA Guides have not adequately rated the impairment.  However, the AMA Guides also provide on page 3/62 the following specifically regarding arthroplasty of a joint:

In the presence of decreased motion, motion impairments are derived separately (Sections 3.1f through 3.1j) and combined with arthroplasty impairments using the Combined Values Chart (p. 322).

The AP concluded that the language on page 3/62 clearly provides that impairment for arthroplasty procedures is to be derived by combining loss of ROM, if any, with arthroplasty impairment under Table 27.

The language contained on page 3/58 is ambiguous, whereas the language on page 3/62 provides more clear instruction regarding the rating of arthroplasty procedures.  Therefore, the AP held that impairment for a distal clavicle resection arthroplasty that was received as treatment for the compensable injury results in 10% UE impairment under Table 27, which is then combined with ROM impairment, if any, as provided by the AMA Guides. APD 151158-s.

Upper extremity impairments for a limb are combined using the CVC to determine the total upper extremity impairment and then the total upper extremity impairment is converted to a whole person impairment. APD 061569-s. (Please note that if both upper extremities are involved, derive the whole person impairment percent for each and then combine both values using the CVC. See Guides 4th Ed. page 66.)

RSD/CRPS.

Impairment secondary to causalgia and RSD is derived as set forth on page 3/56 of the Guides 4th Ed. entitled "Causalgia and RSD", not from Table 17 "Impairment of Upper Extremity Due to Peripheral Vascular Disease" on page 57 of the Guides 4th Ed. APD 052243-s.

Certifying Doctor.

Only an authorized doctor may determine whether an IW has permanent impairment, and assign an IR if there is permanent impairment. Section 130.1(a). Authorized doctors are described in Section 130.1(a). It should be noted that a DD's report has presumptive weight and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary. If the preponderance of the medical evidence contradicts the IR contained in the report of the DD chosen by the Division, the Division shall adopt the IR of one of the other doctors. Section 408.125(c); APD 071599-s. In APD 170041, the HO failed to specify which of the three separate certifications of MMI and IR by three separate doctors she was adopting as required by Section 408.125(c) which states that the Division shall adopt the IR of one of the other doctor. The AP reversed the HO's determination and remanded the case back to the HO to determine which doctor’s certification she was adopting.  

Disputing the IR.

[Cross-references: Dispute of DD IR (I11); IR Finality/90-Day Disputes (I12)]

Mistakes in Calculating the IR.

The AP has held that a HO may apply a mathematical correction to a certification of IR when doing so merely corrects an obvious mathematical error and does not involve the exercise of judgment as to what the proper figures were. APD 040863. A clerical error made by the doctor in using the CVC of the Guides may also be corrected. APD 041424; Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex. App.-El Paso 1998, no pet.). A HO may not piecemeal doctors' reports to assemble an IR. APD 050729-s.

RME Request/Failure to Attend (I08)

On the IC's request, or by the Commissioner's order, an IE may be required to submit to a required medical examination (RME) to resolve issues on: appropriateness of health care received by the IE; the designated doctor's determinations on impairment rating (IR), attainment of MMI, extent of injury, disability, ability to work, and any other similar issue; or whether the IE's medical condition has improved sufficiently to allow the IE to return to work. TLC Sections 408.004, 408.0041, 408.151; 28 TAC Section 126.5. If the IC is not satisfied with the opinion of the DWC-selected designated doctor, it may then request to have a doctor selected by the IC examine the IE. TLC Section 408.0041(f).

An IC is required to send a copy of the request for medical examination to the IE and the IE's representative by fax, electronic transmission, or other verifiable means. The IC is also required to maintain copies of the request and proof of its successful transmission. 28 TAC Section 126.5(f) and (g).

Notice to Attend.

Once the request for an RME has been granted, DWC shall send a copy of the order to the IE, the IE's representative, and the carrier. 28 TAC Section 126.6(a). The exam must be scheduled within 30 days from the date the order is received. In addition, the IE is entitled to 10 days' advance notice of the RME. 28 TAC Section 126.6(b).

10-Day Notice Not Required for Rescheduled RME.

The IE appeared for the initial RME but could not be seen that day because a translator was not available. The RME was rescheduled to take place more than 10 days later. The IE failed to attend the rescheduled RME due to transportation issues. A CCH was held to determine if the IE had good cause for failing to attend the rescheduled RME and, if not, whether the IC could terminate the payments of TIBs. The ALJ found that the IE did not have good cause, but the IC was not entitled to suspend benefits because it had failed to give the IE 10 days' notice of the examination. The AP reversed and rendered, stating that the 10-day notice requirement did not apply to rescheduled RMEs. APD 020108-s.

Notice of RME Doesn't Need to Be Sent by Verifiable Means.

The IE failed to attend a scheduled RME appointment. At the CCH the IE testified that she did not receive notice of the RME appointment. The IC presented evidence that it sent the notice through a private shipper. The ALJ ruled in favor of the IE because the IC had not sent the notice through verifiable means. This was clear error. 28 TAC Section 126.5(g) (now 28 TAC Section 126.5(f)) requires that a copy of the request for an RME order be sent through verifiable means. That rule provision does not apply to the notice of the scheduled RME appointment. APD 051193.

Failure to Attend.

An IE who fails to attend an RME without good cause is not entitled to receive TIBs. An IC may suspend payment of benefits during the period when there is no good cause for failing to attend an RME. TLC Section 408.0041(j); 28 TAC Section 126.6(j). The test for whether good cause exists is whether the IE acted as a reasonable, prudent person. An IE acts as a reasonable, prudent person if they act with the degree of diligence which an ordinary person would exercise in the same or similar circumstances. APD 94244. Good cause is a question of fact for the ALJ to decide. APD 941656. An ALJ's determination as to good cause will not be set aside unless the ALJ acted without reference to any guiding rules or principles. APD 010828.

Good Cause Found.

A CCH was held to determine whether the IE had good cause for failing to attend an RME. During the CCH, the IE credibly testified that he failed to appear for the scheduled RME, because he did not receive notice of the appointment and the mail delivery at his apartment complex was unreliable. The evidence showed the IC sent the notice as required. Based on the IE's testimony, the ALJ determined that the IE had good cause for failing to attend the RME. Good cause is a question of fact for the ALJ to decide. As the ALJ could have found good cause based on the IE's testimony, there was no abuse of discretion and the ALJ's decision was affirmed. APD 013039.

No Good Cause.

The IE did not drive and did not have a vehicle. The IE testified that he arranged to have a friend take him to his RME appointment. On the way to the appointment, the IE's friend received a call in which the friend was informed that his father was dying or had died. The IE's friend could not find the doctor's office and decided to abort the trip and go to the hospital to be with his father. The ALJ did not believe the IE's testimony and determined that he did not have good cause for failing to attend the RME, thereby allowing the IC to suspend TIBs. Whether the IE had good cause for failure to attend the RME appointment was a question of fact for the ALJ to resolve. APD 010828.

Failure to Cooperate.

An IE who attends an RME but fails to participate or cooperate during the examination without good cause is not entitled to TIBs. The term "attend" in 28 TAC Section 126.6(j) has been construed to include and require submission to an RME. The IE must actually submit to the examination as opposed to merely attending the examination. APD 022315.

The day before an RME was scheduled, the IE rescheduled the RME because she was experiencing a "flare-up" of a digestive disorder. The second RME was scheduled for two weeks after the initial RME. The IE appeared for the RME on that date but did not feel she could be examined due to her condition. Because the examining RME doctor believed that the IE was attempting to avoid examination, and the IE would resist any attempts to examine her, the RME doctor rescheduled the IE's examination to over a month later. The ALJ found that the IE's failure to submit to the previous two exams constituted a failure to attend the RME and that the IE did not have good cause for doing so. Good cause is a question of fact for the ALJ to decide. As the ALJ did not act without reference to any guiding rules or principles, the AP affirmed the ALJ's decision. APD 010407.

Dispute of Designated Doctor MMI Date (I10)

[Cross-references: Date of MMI (I06); Impairment Rating (I07); Dispute of Designated Doctor MMI Date (I11); RME/MMI Dispute (I51).]

Only an IC, an IE, an IE's attorney, or an IE's representative defined under 28 Texas Administrative Code (TAC) Section 150.3(a) may dispute a first valid certified MMI date. 28 TAC Section 130.12(b)(1). Under 28 TAC Section 130.12(b)(1), where a DD has not been appointed to address MMI and IR, a party could dispute a first valid certification of MMI by either filing a request for a BRC (DWC-45) or a request for the appointment of a DD (DWC-32) before the 90-day period to file a dispute expires. APD 180848-s. If a DD has been appointed to address MMI and IR, the party must request a BRC pursuant to 28 TAC Section 141.1 to dispute the first valid certification of MMI.

Dispute.

On January 14, 2004, the IE received written notice of her first certification of MMI and IR assigned by a DD. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IE requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the claimant's request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under 28 TAC Section 130.12(b)(1).The AP also noted in the decision that requesting a letter of clarification be sent to the DD does not constitute a proper process to dispute the first certification of MMI and assigned IR.  APD 042163-s.

The treating doctor certified a first valid MMI date and assigned a first valid IR for the IE, and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a TWCC-32 (now DWC-32) requesting that a DD be appointed. The IC completed Sections I and II of the form, and checked the block, "To dispute an assigned date of [MMI] and [IR][;]" however, the IC did not complete Section III of the form. The AP affirmed the ALJ's decision that the IC filed a TWCC-32 with TWCC (now DWC) on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to 28 TAC Section 130.12(b)(1). APD 043023-s.

Not a Dispute.

The DD examined the IE on January 6, 2004, and issued the IE's first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a TWCC-22 (now DWC-22) Required Medical Examination Notice or Request for Order to have the IE examined by a doctor of its choice, and the request was approved. On April 28, 2004, after the 90-day period expired, the IC filed a request for a BRC to challenge the DD's certification of MMI and assigned IR. The ALJ correctly decided that the IC failed to timely dispute the IE's first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a BRC or, if a DD has not been appointed, by requesting that one be appointed. APD 041903-s.

Dispute of Designated Doctor Impairment Rating (I11)

[Cross-references: Date of MMI (I06); Impairment Rating (I07); RME/MMI Dispute (I51).]

Only an IC, IE, IE's attorney, or IE's representative defined under 28 Texas Administrative Code (TAC) Section 150.3(a) may dispute a first valid assigned IR. 28 TAC Section 130.12(b)(1). Under 28 TAC Section 130.12(b)(1), where a designated doctor (DD) has not been appointed to address MMI and IR, a party could dispute a first valid IR assignment by either filing a request for a BRC (DWC-45) or a request for the appointment of a DD (DWC-32) before the 90-day period to file a dispute expires. APD 180848-s. If a DD has been appointed to address MMI and IR, the party must request a BRC pursuant to 28 TAC Section 141.1 to dispute the first valid assignment of IR.

Texas Labor Code (TLC) Section 408.125(a) provides that if an IR is disputed, the commissioner shall direct the IE to be examined by a DD. The Appeals Panel (AP) has stated that under the provisions of TLC Section 408.125, no determination can be made about the IE’s IR because there is no report from a DD. See APD 020385, APD 142008, APD 132423, and APD 180848-s, in which the issues of MMI and IR were in dispute, and a DD had not been appointed to opine on the issues of MMI and IR.

The DD was appointed to address extent of the compensable injury, but there had not been a DD appointed to address MMI and IR. The ALJ’s MMI and IR determinations that the IE reached MMI on May 4, 2016, with a 5% IR were reversed and remanded for a DD to be appointed on the issues of MMI and IR. APD 172128.

Dispute.

On January 14, 2004, the IE received written notice of her first certification of MMI and IR assigned by a DD. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IE requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the IE's request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under 28 TAC Section 130.12(b)(1). APD 042163-s.

The treating doctor certified a first valid MMI date and assigned a first valid IR for the IE and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a DWC-32 requesting that a DD be appointed. The IC completed Sections I and II of the form, and checked the block, "To dispute an assigned date of [MMI] and [IR][;]" however, the IC did not complete Section III of the form. The AP affirmed the ALJ's decision that the IC filed a DWC-32 with the Division on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to 28 TAC Section 130.12(b)(1). APD 043023-s.

Not a Dispute.

The DD examined the IE on January 6, 2004, and issued the IE's first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a TWCC-22 (now DWC-22) Required Medical Examination Notice or Request for Order to have the IE examined by a doctor of its choice, and the request was approved. On April 28, 2004, after the 90-day period expired, the IC filed a request for a BRC to challenge the DD's certification of MMI and assigned IR. The ALJ correctly decided that the IC failed to timely dispute the IE's first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a BRC or, if a DD has not been appointed, by requesting that one be appointed. APD 041903-s.

Dispute of Multiple Certifications from the Designated Doctor.

Under 28 TAC Section 130.12(a)(4), a DD may provide multiple IRs if there is a dispute over extent of injury. This rule subsection also provides that the rating the DD applies to the compensable injury once an extent-of-injury dispute has been resolved may become final if not disputed.

28 TAC Section 130.12(c) provides that the certification on the Report of Medical Evaluation (DWC-69) is valid if: (1) there is an MMI date that is not prospective; (2) there is an impairment determination of either no impairment or a percentage [IR] assigned; and (3) there is the signature of the certifying doctor who is authorized by DWC under 28 TAC Section 130.1(a) to make the assigned impairment determination.

The DD was asked to address the issues of MMI, IR, and extent of injury in an examination. Accordingly, he provided multiple certifications. The DD provided a certification of MMI with an IR of 0% for the accepted injury. He also provided alternate certifications that the claimant had not reached MMI when considering the disputed extent-of-injury conditions. Among the issues in the case was whether the DD’s certification of MMI and IR assignment of 0% became final under TLC Section 408.123 and 28 TAC Section 130.12. After the DD examination, the parties resolved the extent-of-injury dispute by agreeing that the compensable injury included several extent-of-injury conditions in dispute. Based on the resolution of the extent-of-injury dispute, the ALJ found that, under 28 TAC Section 130.12(a)(4), the certification finding the IE to be at MMI with a 0% IR was not subject to finality and did not become final. The AP reversed the ALJ’s decision, reasoning that the DD’s alternate certifications finding the IE not to be at MMI did not contain multiple IRs or ratings as stated in 28 TAC Section 130.12(a)(4). Further, the AP noted that the alternate certifications did not contain the requirements for a valid certification as stated in 28 TAC Section 130.12(c). Since the certification of MMI and assigned IR of 0% was the first valid certification of MMI and IR on the claim, it was subject to finality, and the IE was required to dispute the certification within 90 days of it being provided to him by verifiable means. The case was remanded back to the ALJ to consider whether there was compelling medical evidence of any exceptions to finality found in TLC Section 408.123(f). APD 190180.

IR Finality/90-Day Disputes (I12)

[Cross-references: Date of MMI (I06); IR (I07); Dispute of DD MMI Date (I11); RME/MMI Dispute (I51)]

An IE has only 90 days to dispute a first valid certification of MMI and/or first valid assignment of IR pertaining to the IE after it is provided to the IE by verifiable means. An IC has only 90 days to dispute a first valid MMI certification and/or first valid IR assignment pertaining to the IE after it is delivered to the IC by verifiable means. If neither the IE nor the IC disputes the first valid certified MMI date and/or first valid assigned IR pertaining to the IE within their respective 90-day period, that first valid certified MMI date and/or first valid assigned IR is final. Section 408.123(e).

The important words and phrases are, "first", "valid", "provided to", "delivered by verifiable means", "90 days" (90-day period), and "dispute". All of these are requirements that must be considered to decide whether a certified MMI date and assigned IR have become final under Sections 408.123 and 130.12. In addition, even if all of these requirements were met, there are possible exceptions to finality under Section 408.123(f).

90-Day Period.

The 90-day time period for a party begins after written notice of the first valid certification of MMI and/or first valid assignment of IR is delivered to that party by verifiable means. Sections 408.123(e) and 130.12(b). The 90-day period for the IC starts the day after its notice is delivered by verifiable means. The 90-day period for the IE starts the day after the IE's notice is delivered by verifiable means. The 90-day periods will be the same for the IC and IE only if they each happen to have their notice delivered by verifiable means on the same day.

Delivery by Verifiable Means.

Written notice of the IE's first valid certified MMI date and/or first valid assigned IR must be provided to the IE and IC by verifiable means. Section 408.123(e). The 90-day period begins for the IC on the day after notice is delivered to it by verifiable means. The 90-day period begins for the IE on the day after notice is delivered to the IE by verifiable means. APD 041985-s. Written notice has been provided by verifiable means when it is delivered in a manner that reasonably confirms delivery to a party. This may include a statement of personal delivery, acknowledged receipt by the IE or IC, confirmed delivery by facsimile or email, or by some other confirmed delivery to the home or business address. APD 042749. When the written notice was provided or delivered to the IC or IE is a question of fact for the ALJ to resolve. APD 042163-s. When a certification of MMI and assignment of IR is mailed to the IE’s correct address by certified mail, return receipt requested, but signed for by someone else other than the IE, the certification of MMI/IR has been delivered to the IE. APD 070655. The preamble to Rule 130.12 discusses how written notice is verifiable and goes on to state at 29 Tex. Reg. 2331, March 5, 2004: …a party may not prevent verifiable delivery. For example, a party who refuses to take personal delivery or certified mail has still been given verifiable written notice. APD 070913. The benefit review conference (BRC) exchange of the first valid certification of MMI and assignment of IR by a party constitutes acknowledged receipt by that party and sufficient evidence to establish delivery by verifiable means. APD 161916.

Written Notice Delivered by Verifiable Means.

The IE testified that he received a letter from the IC in October 2005, but he did not recall the date of receipt. In evidence were the adjuster's notes dated October 13, 2005, that indicated the DD's DWC-69 certification of MMI/IR was mailed to the IE via certified mail. Also, in evidence were a copy of an United States Postal Service certified mail return receipt request form or "green card" with the IE's name, address, signature, and a date-stamp of October 21, 2005, and a track and confirm document, which correlated with the green card receipt number that showed the certified mail was delivered on October 21, 2005. The ALJ found that the DD's MMI/IR certification did not become final because certification was not delivered to the IE by verifiable means. The AP reversed the ALJ's determination that the DD's certification of MMI/IR did not become final because under the facts of this case, the DD's certification of MMI/IR was delivered to the IE by verifiable means as evidenced by the adjuster's notes dated October 13, 2005, the green card, and the track and confirm document, which showed delivery on October 21, 2005. APD 070533-s. See also APD 171530.

The IC mailed the first certification of MMI and assignment of IR to the IE at his address by certified mail, return receipt requested, on July 15, 2005.  In evidence was a copy of a USPS certified mail return receipt request form or “green card” showing an individual, who the parties agreed was the IE’s grandmother, signed for the correspondence on July 25, 2005.  It was undisputed that the IE was overseas at the time, and the IE contended he never received the certification or report.  The ALJ determined that the first certification of MMI and IR assigned by Dr. E did not become final under Rule 130.12.  The AP reversed the ALJ’s determination, noting a long line of cases holding that when a certification of MMI and assignment of IR is mailed to the IE’s correct address by certified mail, return receipt requested, but signed for by someone else other than the IE, the certification of MMI/IR has been delivered to the IE.  APD 070655.

The AP reversed the ALJ's determination that the first certification of MMI/IR did not become final under Section 408.123 and rendered a decision that the first certification of MMI/IR became final pursuant to Sections 408.123 and 130.12. The PLN-3 and DWC-69 were mailed to the IE's correct address by certified mail, return receipt requested; delivery of the certified mail was attempted per the notation of the date on the envelope; and the "green card" indicated that the PLN-3 and DWC-69 were included. The AP held that the IE was given verifiable written notice of the first certification of MMI/IR and it was undisputed that the IE did not dispute the certification within 90 days. APD 070913.

The TD issued the first valid certification of MMI/IR on March 12, 2007. In a fax dated March 21, 2007, the IC sent the Division a PLN-3 stating that a "copy of the DWC-69 by the [TD] is included in this fax." The PLN-3, dated March 21, 2007, and addressed to the IE, stated that the IC was disputing the TD's IR "(copy attached)" and that the IC made a reasonable assessment of an impairment. The ALJ determined the IC did not receive the certification through verifiable means. On appeal the AP determined that the IC's referencing the TD's report in the PLN-3 and sending a copy of the TD's DWC-69 to the Division established acknowledged receipt of the first certification of MMI/IR. The AP reversed the ALJ's determination and rendered a decision that the IC received the first certification of MMI/IR through verifiable means based on the IC's acknowledged receipt on March 21, 2007, of the first valid certification of MMI/IR. APD 080301-s.

The ALJ found that the first certification of MMI and IR did not become final under Sections 408.123 and 130.12 because the evidence was insufficient to show acknowledged receipt by the IE on a date certain to begin the 90-day period nor was the evidence sufficient to show that the IC had verifiable proof that the report was delivered to the IE. The AP reversed and rendered a new decision that the first certification of MMI and IR did become final. The evidence established that the first certification of MMI and assigned IR dated May 30, 2007 was delivered by verifiable means solely to the IE's attorney, but the evidence also established that the IE exchanged it with the IC at a BRC held June 20, 2007, attended by the IE and his attorney. One of the requested BRC issues was "Entitlement to IIBs based on DD report of 05/30/07 with 5% IR." The requested issue regarding IIBs was not indicative of a dispute of the first certification of MMI/IR, but rather a request for payment of IIBs based on the assessed 5% IR. Although the IE testified that he did not know what documents (nor the date that his attorney received them) were exchanged by his attorney at the BRC, the evidence established that the IE had a copy of the first certification of MMI and IR by the June 20, 2007, BRC. Distinguishing APD 080921-s, under the facts of this case, the AP held that the exchange of the first valid certification constitutes acknowledged receipt by the IE. There was no evidence that the IE disputed the first valid certification of MMI and IR within 90 days of delivery of written notice through verifiable means. APD 081248-s. See also APD 152167.

Written Notice Not Delivered by Verifiable Means.

Other than the IE's testimony, no evidence was presented at the CCH to indicate that the notification was delivered to the IE by verifiable means. In this circumstance, the ALJ was free to believe the IE's testimony to establish the date notice was first delivered to the IE by verifiable means. APD 041241-s.

The IC provided evidence at the CCH that the Notification Regarding [MMI] and/or [IR] of the IE's certification, along with the DWC-69 Report of Medical Evaluation, was sent to the IE by certified mail with return receipt requested; however, the certified mail was returned to the IC because the IE never picked it up. The IE testified at the CCH that he had not received any notice regarding the certified mail. There was no evidence as to what date the notifications of the certified mail were delivered to the IE, nor was there any indication of the date the certified mail was returned to the IC. The ALJ found that the IE had received written notice by verifiable means to trigger the 90-day period under Sections 408.123 and 130.12. The AP reversed, stating that the IC had failed to present evidence of a date certain that would be sufficient to begin the 90-day period under Sections 408.123 and 130.12. APD 050031-s. See also APD 152535.

The ALJ found that the first certification of MMI and IR became final under Section 408.123 because it was not disputed within 90 days after the certification was provided to the IE's attorney. The AP reversed and rendered a new decision that the first certification did not become final. The evidence established that the first certification of MMI and assigned IR was delivered by verifiable means solely to the IE's attorney, but there was no evidence of delivery of the written notification of the first certification of MMI and assigned IR to the IE as required by Section 102.4(b). APD 080921-s.

The assistant to the adjuster for the IC testified at the CCH that she mailed the Notification of MMI/First IIBs Payment (PLN-3) and DWC-69 via the USPS with delivery confirmation, and that she had confirmed the delivery of the PLN-3 and DWC-69 to the IE at his address on March 28, 2009, through the USPS website.  The ALJ found that the first certification of MMI and assigned IR became final under Section 408.123, noting in her Decision and Order that the evidence established the notice was sent to the IE by verifiable means.  The AP reversed, stating there was no documentary evidence that the certification of MMI and assigned IR was delivered to the IE by verifiable means on March 28, 2009.  The AP noted there was no date or address listed on the copy of the USPS delivery confirmation number to confirm delivery of the certification of MMI and assigned IR to the IE.  The AP further noted that although there was testimony from the adjuster’s assistant regarding the date of delivery, there was no evidence of the date of delivery by verifiable means.  APD 101033.

The IE testified that she received the DWC-69 and narrative in October 2012. The ALJ found that because the IE acknowledged that she received the certification in October 2012, the IE received written notification of the certification by October 31, 2012. The AP noted that the IC did not have verifiable proof that the first certification of MMI and IR was delivered, and the IE did not know or testify to the specific date of receipt. Therefore, the AP held that the IE’s testimony did not constitute an acknowledged receipt by the IE on a date certain sufficient to begin the 90-day period of Section 408.123(d) and Rule 130.12. APD 141822.

IC presented a copy of the e-mail that indicates the certification was sent to the IE; however there was no evidence of delivery to the IE. Simply verifying a correct e-mail address does not establish that the certification was delivered. Similarly, simply mailing the certification to the correct mailing address without evidence of delivery or sending the certification by fax to a correct fax number without verification of delivery does not establish delivery by verifiable means. APD 172534.

The ALJ determined that the DD’s MMI certification and IR assignment were provided to the IC by verifiable means on or before July 10, 2015, based on a note in the RME doctor’s report that the Division received a RME Notice or Request for Order Form (DWC-22) on that date. The ALJ wrote that the request for a post-DD RME exam established a reasonable expectation that the IC received the DD report before this date. The AP disagreed and held that the IC’s request for a post-DD RME may suggest that the IC had actual knowledge of the DD’s certification and assignment but no evidence was presented that reasonably confirms delivery or that written notification was provided to the IC by verifiable means. As there was no showing that provision/delivery of written notice was made through verifiable means, the AP reversed the ALJ’s decision that the first certification of MMI and IR assigned by the DD became final under Section 408.123 and Rule 130.12 and it rendered a new decision that the first certification of MMI and IR assigned by the DD did not become final under Section 408.123 and Rule 130.12. APD 160629.

Disputing the First Valid Certified MMI Date and/or First Valid Assigned IR.

Only an IC, an IE, an IE's attorney, or an IE's representative as defined under Section 150.3(a) may dispute a first valid certified MMI date and/or first valid assigned IR. Section 130.12(b)(1). To dispute an IE's first valid certified MMI date and/or first valid assigned IR, the disputing party must request a BRC by filing a DWC-45 pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a DD has not yet been appointed to address MMI and IR, request the appointment of a DD to dispute certified MMI date and assigned IR by filing a DWC-32. If a DD has not yet been appointed to address MMI and IR, a party could dispute a first valid certification of MMI and IR by either filing a DWC-45 or a DWC-32 prior to the expiration of the 90-day period to file a dispute. APD 180848-s.

If, within their respective 90-day periods, either the IC or IE properly disputes the first valid certified MMI date and/or first valid assigned IR, it cannot become final. Section 408.123(e).

The first valid certified MMI date and/or first valid assigned IR must be timely disputed even if the compensability of an injury is also in dispute. If an IC has failed to dispute the first valid certified MMI date and/or first valid assigned IR but has disputed the compensability of an injury and the injury is later determined not compensable, the IC will be relieved of the obligation to pay benefits. The 90-day dispute provision of Sections 408.123(e) and 130.12 will not make a first valid certified MMI date and/or first valid assigned IR final where an injury has been found not compensable. APD 043105-s.

Dispute.

On January 14, 2004, the IE received written notice of her first certification of MMI and IR assigned by a DD. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IE requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the IE's request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under Section 130.12(b)(1). APD 042163-s.

The TD certified a first valid MMI date and assigned a first valid IR for the IE and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a DWC-32 requesting an appointment of a DD. The IC completed Sections I and II of the form, and checked the block, "To dispute an assigned date of [MMI] and [IR]," however, the IC did not complete Section III of the form. The AP affirmed the ALJ's decision that the IC filed a DWC-32 with the Division on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to Section 130.12(b)(1), and that the first valid certified MMI date and first valid assigned IR did not become final. APD 043023-s.

The IE filed a DWC-45 to dispute the first certification of MMI and IR within the prescribed 90-day period. The completed DWC-45 was approved by the Division, and a BRC was scheduled. On September 27, 2011, the IE filed a motion entitled “Request to Cancel BRC.”  The motion recited 28 TEX. ADMIN. CODE § 141.2(b) (Rule 141.2(b)) on requesting a cancellation or rescheduling within 10 days of receipt of the notice of the BRC setting, and requested the BRC be cancelled. The AP noted that under the facts of this case, the evidence established that the IE, within the 90-day period, filed a DWC-45 in a manner prescribed by the Division and the DWC-45 was approved.  A BRC was scheduled on the finality issue.  There is no evidence that the IE withdrew his finality dispute, and his motion to cancel the BRC was nothing more than a request to reschedule the BRC to a later date.  There is no evidence that the parties agreed to withdraw the finality issue from dispute as provided in Rule 130.12(b)(3).  The AP reversed the ALJ’s decision that the first certification of MMI and IR became final under Section 408.123 and rendered a new decision that the first certification did not become final. APD 120857-s.

The ALJ decided, among other issues, that the first certification of MMI and assigned IR from the TD referral doctor became final under Section 408.123 and Rule 130.12. The TD referral doctor’s certification of MMI and IR was the first certification of MMI and IR, and a DD had not been appointed to address MMI and IR. Prior to the expiration of the 90-day finality period, the IE’s attorney filed a DWC-45 on the IE’s behalf, requesting a BRC to dispute MMI and IR, as well as a DWC-32, requesting a DD examination for MMI and IR. The DWC-32, though filed within the 90-day finality period, was returned to the IE’s attorney as incomplete and a subsequent DWC-32 was not filed by the IE’s attorney until after the expiration of the 90-day finality period. The ALJ found that the Division acted within its administrative regularity in denying the IE’s initial DWC-32. The ALJ stated in her discussion of the Division determination that it was necessary, at the very least, to provide correct information on the DWC-32 and that the IE failed to do so. The ALJ concluded that the DWC-32 was not timely and the first certification of MMI and IR became final. The AP cited APD 043023-s, in which the IC filed a DWC-32 requesting the appointment of a DD to “dispute an assigned date of [MMI] and [IR];” however, the DWC-32 was returned to the IC by the Division as incomplete because it did not complete Section III of the form. In that case, the AP affirmed the ALJ’s determination that the filing of the DWC-32 requesting a DD was sufficient to dispute the first valid certification of MMI and IR pursuant to Rule 130.12(b)(1). The AP pointed out that, in this case, as in APD 043023-s, the IE had filed a DWC-32 requesting the appointment of a DD to address MMI and IR, which was timely and sufficient to dispute the first certification of MMI and IR. The ALJ did not discuss or make any findings regarding the IE’s DWC-45, which was also timely filed to dispute the first certification of MMI and IR. Pursuant to Rule 130.12(b)(1), as a DD for MMI and IR had not been appointed in this case, the first certification of MMI and IR could be disputed by either filing a DWC-45 or a DWC-32 prior to the expiration of the 90-day finality period. In this case, the IE filed both the DWC-45 and DWC-32 in a timely manner, though, since a DD had not been appointed for MMI and IR, she only needed to file one form or the other in a timely manner. Since the IE had filed a timely dispute of the TD referral doctor’s certification of MMI and IR, the AP reversed the ALJ’s determination on finality and rendered a new decision that that certification did not become final under Section 408.123 and Rule 130.12. APD 180848-s.

Not a Dispute.

The Division-appointed DD examined the IE on January 6, 2004, and issued the IE's first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a DWC-22 Required Medical Examination Notice or Request for Order to have the IE examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. The ALJ correctly decided that the IC failed to timely dispute the IE's first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a BRC or by requesting the appointment of a DD, if one has not been appointed. APD 041903-s.

The IC filed two DWC-45s dated October 18, 2010, and November 8, 2010, to dispute the first valid certification from the TD, however, both forms had written language requesting that a BRC not be set. The ALJ found that the IC timely filed the DWC-45s in a manner prescribed by the Division, and the ancillary language written on the DWC-45s (requesting that a BRC not be set) did not render the forms invalid for purposes of disputing the first certification of MMI/IR. The AP noted that Rule 130.12 provides that parties may only dispute the first valid certification of MMI/IR under either Rule 141.1 or by requesting the appointment of a designated doctor if one has not been appointed. It further noted that the Division’s preamble to Rule 141.1 states that only after a complete request is submitted, approved, and a BRC scheduled has a party established a dispute of the first valid certification of MMI and IR, effective the date the party filed the request, in accordance with Section 408.123(e).  Therefore, the IC failed to establish a dispute of the first valid certification of MMI/IR, because its DWC-45 specifically requested that the Division not set a BRC. APD 111006-s.

The IC filed a Request for Designated Doctor DWC-32 for the issues of MMI/IR on August 31, 2011.  The IE had been referred by the TD to Dr. B who examined him on September 26, 2011.  Dr. B certified the IE at MMI on September 26, 2011, with a nine percent IR.  In response to the IC’s DWC-32, Dr. VB was appointed as the designated doctor on the issues of MMI/IR.  Dr. VB examined the IE on October 19, 2011, and certified the IE at MMI on July 19, 2011, and assessed a six percent IR. The first valid certification of MMI/IR was by Dr. B, and the ALJ found that Dr. B’s certification was received by the IC by verifiable means on October 6, 2011, and that the carrier did not file a DWC-32 or a DWC-45 after receipt of Dr. B’s certification. The ALJ found the IC’s previous filing of a DWC-32 was effective to prevent finality of the certification by Dr. B which occurred in the meantime. However, the AP held that the ALJ’s comment is an incorrect application of Rule 130.12(b)(1) and that the IC failed to timely dispute Dr. B’s first valid certification by failing to timely request a BRC. APD 121272.

First Valid Certifications of MMI And Assignments of IR.

There can be only one first valid certified MMI date and/or first valid assigned IR and it is the one that is made first in time. However, if the first valid certification of MMI and/or assignment of IR should be modified, overturned, or withdrawn by final decision of the Division or court or withdrawn by agreement of the parties, that first valid certified MMI date and/or first valid assigned IR is no longer valid as of the date of the modification, overturning, or withdrawal. Then, the first valid certified MMI date and/or first valid assigned IR that is made after the date of the modification, withdrawal, or overturning may become final under Sections 408.123(h) and 130.12(a)(3). If there is a prior certification of MMI and IR in evidence, a determination should be made as to which is the first valid certification of MMI and IR.  APD 142338.

Valid MMI Certification and IR Assignment.

A valid certification of MMI and/or assignment of IR requires the following four elements: (1) the certification must be on a DWC-69, Report of Medical Evaluation; (2) the certification must contain an MMI date that is not prospective; (3) the certification must contain an impairment determination of either no impairment or a percentage IR assigned; and (4) the certification must contain the signature of the certifying doctor who is authorized under Section 130.1(a) to make the assigned impairment determination. Section 130.12(c); APD 050729-s. However, a certification does not require a narrative report to be valid. See APD 132383. Additionally, a certified MMI date that is after the statutory date of MMI does not cause the certification to be invalid. See APD 100636-s.

The decisions regarding the validity of a certified MMI date and assigned IR under this heading, IR Finality/90-Day Disputes (I12), are to apply only to the 90-day finality. [For validity of a certification of MMI and IR assignment generally, see cross-references: Date of MMI (I06); IR (I07); Dispute of DD MMI Date (I10); and Dispute of DD IR (I11).]

Examples of Invalid MMI Certifications and IR Assignments.

An individual on behalf of the certifying doctor signed the IE's DWC-69, Report of Medical Evaluation. The ALJ determined that the individual signing the DWC-69 was the certifying doctor's agent, and therefore found the first valid certified MMI date and first valid assigned IR valid. The ALJ went on to find that the first valid certified MMI date and first valid assigned IR became final under Section 130.12. The AP reversed, stating that a first valid certified MMI date and first valid assigned IR must either contain the certifying doctor's actual signature on the DWC-69 or have his or her signature affixed with a rubber stamp or an electronic facsimile signature. [See Section 130.1(d)(1)(A).] APD 042044-s.

It was undisputed that the DD's report dated August 12, 2004, certifying MMI on that date with a 15% IR was the first certification of MMI/IR. The evidence indicated that on August 17, 2004, the IC received by fax the DD's narrative. Subsequently, on September 13, 2004, the DD faxed a copy of the DWC-69 to the IC. The IC disputed the DD's certification on December 7, 2004, by filing a request for BRC. The focus in this case was whether the receipt of the narrative report on August 17, 2004, was sufficient to begin the 90-day clock of Sections 408.123 and 130.12. The AP affirmed the ALJ's decision that the first certification of MMI/IR assigned by the DD on August 12, 2004, did not become final. The AP stated that where the rule states that the MMI and/or IR assigned must be on a DWC-69, Report of Medical Evaluation, other means of communication of the MMI/IR, such as in this case, by means of a narrative report without a DWC-69, are insufficient to begin the 90-day dispute period of Sections 408.123 and 130.12(b). APD 050747-s.

Examples of Valid MMI Certifications and IR Assignments.

Dr. G examined the IE on April 2, 2009, and indicated on his medical report dated that same date that “[the IE] continues to have problems in her right leg.  The request for her SI injection has been denied.  Consequently, we will place her at MMI with evaluation of her knee and hip. . .”  In evidence were records dated April 7, 2009, which contained ROM measurements for the IE’s right lower extremity, and resulted in a 10% IR.  Dr. G certified in a DWC-69 dated April 7, 2009, that the IE reached MMI on April 7, 2009, with a 10% IR.  The ALJ stated in her Decision and Order that “[i]f the April 2, 2009, examination was a certifying examination, then the [MMI] date of April 7, 2009, would be a prospective date.”  The ALJ found that Dr. G’s assigned IR was not a valid rating, and determined, among other things, that the first valid certification of MMI and assigned IR by Dr. G did not become final under Section 408.123.  The AP reversed the ALJ’s determination, noting Dr. G completed the DWC-69 on April 7, 2009, and based the IE’s IR on ROM measurements performed on April 7, 2009.  The AP held that the ALJ’s finding that Dr. G’s assigned IR was not a valid rating is incorrect.  The MMI date certified by Dr. G was not prospective but rather based on the April 7, 2009, date that ROM measurements were taken, the DWC-69 was signed and a percentage IR was assigned.  The AP further noted that Section 130.12 does not require a narrative report for a certification to be a valid certification.  APD 100483.

The ALJ determined that the first MMI/IR certification from Dr. B on December 14, 2012, did not become final because there was no narrative report attached to Dr. B’s DWC-69 to comply with Rule 130.1(d)(1)(B). However, the AP noted that Rule 130.12(c) does not require a narrative report to be a valid certification.  As Dr. B’s December 14, 2012, MMI/IR certification meets the requirements of Rule 130.12(c) and is a valid certification, the AP reversed the ALJ’s determination that the first MMI/IR certification by Dr. B on December 14, 2012, did not become final. APD 132383.

The ALJ determined that the certification by Dr. L did not become final because the parties stipulated that the statutory date of MMI was June 5, 2007, Dr. L’s certification of an MMI date of June 20, 2007, is after the statutory date of MMI and prospective.  The ALJ found the certification was invalid as it included an MMI date after the statutory date of MMI. The AP noted that a date of MMI becomes prospective if it is projected to occur at some time after the certification of MMI is made.  The key consideration is that the date of MMI was not after the date of certification, that is, signature of the certifying doctor, on the DWC-69.  Pursuant to Rule 130.12(c)(1), a certification of MMI is invalid if it is prospective, however, in this case, the date of MMI was not prospective.  The DWC-69 in evidence reflects that on his DWC-69, Dr. L certified on June 20, 2007, that the claimant reached MMI on that same date.  Although the MMI date certified by Dr. L is after the date of MMI stipulated by the parties, the MMI date of June 20, 2007, is not prospective because it is not projected to occur at some time after the certification of MMI was made by Dr. L on June 20, 2007. The AP reversed the ALJ’s finality determination because Dr. L’s first certification was valid. APD 100636-s.

Section 408.123(f) Exceptions to Finality After 90-Day Period.

An exception to finality after the 90-day period shall be based on "compelling medical evidence." Section 408.123(f).

Improper or Inadequate Medical Care.

 

Not an Exception.

On March 23, 2005, the IW received notice of the first valid MMI certification and IR assignment by verifiable means. The IC preauthorized SS on February 1, 2005. The IW initially declined SS but later had the SS on July 19, 2005. The IW disputed the first valid MMI certification and IR assignment on August 9, 2005. The IW testified at the CCH that the surgery improved his condition and relieved his symptoms. The HO determined that the first MMI certification and IR assignment did not become final under Section 130.12 because there was compelling medical evidence of improper or inadequate treatment of the IW's injury prior to the surgery. The AP reversed the HO's determination because the improper or inadequate treatment must occur prior to the date of certification. The AP also found that the IW's initial refusal of SS did not result in inadequate treatment. APD 052666-s.

The HO determined that the first certification of MMI and assigned IR from Dr. M did not become final under Section 408.123, finding there was compelling medical evidence which established improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.  The AP reversed the HO’s determination, noting there was no compelling medical evidence that any of the IW’s treatment prior to the certification of MMI and assigned IR was improper or inadequate.  The AP noted that no doctor opined the IW received improper or inadequate treatment for his injury; rather, Dr. M’s narrative report stated the IW told Dr. M that he “has done well,” and that the pain in his back had decreased.  The AP further noted that Dr. M noted that the certification and assignment was done when the IW “was doing fairly well” and subsequent to that certification and assignment the IW deteriorated and required care and possibly surgery.  APD 110527.

The HO found that compelling medical evidence exists of improper or inadequate treatment. The HO stated that although two surgeries were performed, given that the IW was no better off as a result, and was sent to pain management with a diagnosis of possible CRPS, the treatment appears to have been inadequate. The HO believed that the fact that the IW’s condition improved so dramatically following a surgery performed by a second doctor was compelling evidence that the treatment was inadequate. However the AP noted that just because there is subsequent surgery or treatment which proves beneficial to the IW does not automatically amount to inadequate treatment and held that the HO used the wrong standard to determine finality. APD 150613.

Mistaken Diagnosis or a Previously Undiagnosed Medical Condition.

 

An Exception.

The first valid certification of MMI and assignment of an IR was based on a diagnosis of a lumbar strain/sprain. During the 90-day period to dispute the first certification of MMI/IR, diagnostic tests revealed a herniated disc. The HO determined that the first certification of MMI/IR became final because the IW was aware that he was misdiagnosed within the 90-day dispute period, but did not dispute the certification. The AP reversed the HO's decision and rendered a decision that the first certification of MMI/IR did not become final because there was compelling medical evidence of a clearly mistaken diagnosis and held that it was of no legal significance that the IW may have been aware of the misdiagnosis during the 90-day dispute period. The AP noted that the exceptions in Section 408.123(f)(1)(A), (B), and (C) do not provide that the exceptions only apply if knowledge of the facts giving rise to an exception occurs after the 90-day period has expired, and that the AP could not create such an exception to the exceptions. APD 061493-s.

The HO determined the first certification of MMI/IR became final under Section 408.123. The first certification was issued by the TD on August 24, 2005, placing the IW at MMI on that date with a 0% IR. The IW claimed the first certification did not become final because she had a previously undiagnosed condition of CTS. There was no diagnosis of CTS until June 2006. A test performed on June 28, 2005 noted no neurophysiologic evidence of CTS; however, the interpretation of that test specifically warned of a possible false negative and suggested retesting if clinically indicated. A doctor recommended CTS release surgery on August 18, 2006, and another doctor, based on a review of medical records, found that based on failure of non-operative treatment for the CTS the requested procedures were indicated medically. The IW ultimately underwent CTS release surgery on November 13, 2006. The DD placed the IW at statutory MMI with a 7% IR. The AP reversed the HO's decision and rendered a new decision that the first certification by the TD did not become final under Section 408.123 because there was compelling medical evidence of a previously undiagnosed medical condition of CTS. The AP stated that Section 408.123(f)(1)(B) did not require that the previously undiagnosed condition be present at the time of the first certification and declined to read such a requirement into the statute. APD 080297-s.

Not an Exception.

The HO determined that the certification of MMI and IR did not become final under Section 408.123 and Rule 130.12 because at the time of the May 31, 2012 certification, there existed an undiagnosed medical condition, CTS, later determined to be part of the (Date of Injury) compensable injury. The HO stated that it was speculated that the cause of the IW’s symptoms could be CTS, though that was merely conjecture until June 7, 2012, and that mere speculation is not a diagnosis. The HO determined that since the CTS that was later determined to have been part of the compensable injury was not actually diagnosed until after the certification from Dr. F was issued, it constituted an undiagnosed medical condition under Section 408.123(f)(1)(B). However, the AP noted the initial medical records indicated that the IW was treated for left wrist pain and was using a wrist brace.  Prior to the date of the first certification of MMI/IR, the IW’s treating doctor requested an EMG to confirm a diagnosis of left wrist CTS.  Further, the IW was referred to Dr. K and was diagnosed with left wrist CTS prior to the expiration of the 90 days to dispute the first certification of MMI/IR. The AP reversed the HO’s determination that Dr. F’s certification of MMI and IR did not become final under Section 408.123 and Rule 130.12. APD 151590.

Significant Error in Applying the Guides or Calculating IR.

 

An Exception.

The DWC-69, Report of Medical Evaluation, showed the IR as being 19% but the certifying doctor's narrative report showed the correct IR calculation to be 28%. This is an exception to finality after the 90-day period. APD 050729-s.

The HO correctly determined that the TD's first valid certified MMI date and first valid assigned IR was not final because the TD used the wrong edition of the Guides in determining the IR. APD 992419.

The fact that an exception under Section 408.123(f) can be established does not make the first certification of MMI/IR invalid for purposes of initially determining whether it is a valid certification under Section 130.102(c) and subject to Section 408.123(e). In this case, there was compelling medical evidence of a significant error in applying the Guides and in calculating the IR in that the DD improperly converted to whole person impairments prior to combining the upper extremity impairments in assessing the IR. The evidence supported the HO's finding that the DD's first assigned IR did not become final under Section 408.123(e) because an exception to finality existed under Section 408.123(f)(1)(A). The RME doctor's IR did not become final under Section 408.123 because under Section 130.12(a)(3) it was not the first valid subsequent certification of MMI and/or assignment of IR or determination of no impairment received after the date a certification of MMI and/or assignment of an IR or determination of no impairment is overturned, modified, or withdrawn by agreement of the parties or by a final decision of the Division or a court. APD 061569-s.

The DD reported that the IW was not at MMI. Subsequently, a TD MMI/IR referral doctor certified the IW reached MMI on September 12, 2006, with a 12% IR. The referral doctor later amended his report to a 16% IR to include impairment for a distal clavicle resection arthroplasty he had failed to rate in his initial report. There was no appeal of the HO's determination that the IW reached MMI on September 12, 2006, so that is the IW's MMI date. The AP affirmed the HO's determination that the referral doctor's failure to rate the distal clavicle resection arthroplasty in his original report constituted compelling medical evidence of a significant error in applying the Guides in calculating the IR, and that the 12% IR did not become final because of Section 408.123(f)(1)(A). The AP reversed and remanded the HO's decision that the IW's IR was 16% because there was no IR assigned by a DD as required by Section 408.125(a). The case was remanded for the DD to assign an IR based on the IW's condition on September 12, 2006, the unappealed MMI date. APD 071283-s.

The HO determined that the DD’s certification at issue became final. The DD assigned a 15 % IR which included 10% impairment under lumbar DRE Category III:  Radiculopathy for the lumbar spine.  In the narrative report, the doctor’s physical examination findings indicated that patellar and Achilles reflexes are 2+ bilaterally, equal and normal. Additionally, the physical examination findings did not document measurements which would relate to atrophy.  The AP stated that  Guides and AP decisions specify that to receive a rating for radiculopathy the claimant must have significant signs of radiculopathy, such as loss of relevant reflexes, or measured unilateral atrophy of 2 cm or more above or below the knee, compared to measurements on the contralateral side at the same location.  The atrophy or loss of relevant reflex must be spine-injury-related for radiculopathy to be rated.   See APD 072220-s, decided February 5, 2008. Since the DD assessed a rating for radiculopathy but did not document significant signs of radiculopathy or note significant signs of radiculopathy in the medical records he reviewed, the AP held that there is compelling medical evidence of a significant error by the certifying doctor in calculating the claimant’s IR pursuant to Section 408.123(f)(1)(A). APD 160325.

Not an Exception.

The AP held that the district court judgment on extent of injury was not compelling medical evidence which established an exception to finality under Section 408.123. The AP determined that the CCH record did not reveal compelling medical evidence to establish that there was a significant error in applying the AMA Guides or in calculating the IR. The HO's determination that the first certification of MMI/IR did not become final was reversed and a decision was rendered that the first certification of MMI/IR did become final. APD 061599-s.

The HO determined that the first IR from Dr. W on January 30, 2013, did not become final under Section 408.123 and Rule 130.12 because there was a significant error by Dr. W in calculating the IR, in that he rated a hernia that was not part of the compensable injury. However, the AP disagreed that the mere fact that Dr. W included a hernia in her IR constitutes a significant error in applying the Guides. It further noted that there is no provision in either Section 408.123 or Rule 130.12 that states that the mere inclusion of a noncompensable condition in an assignment of IR constitutes an exception for finality.  The AP declined to read any such interpretation in those provisions and declined to follow any prior cases that may have read such an interpretation.  APD 132117.

The HO found that the certifying doctor did not rate the entire compensable injury in his November 12, 2010, certification, and therefore, the exception found in Section 408.123(f)(1)(A) of the Act applies. The hearing officer determined that the first MMI/IR certification by Dr. RR on November 12, 2010, did not become final under Section 408.123 and Rule 130.12. The AP noted that there is no provision in either Section 408.123 or Rule 130.12 that provides that the exclusion of a condition in an assignment of IR constitutes an exception to finality. The AP further determined that while a subsequent resolution of the extent of the compensable injury may be an element of one of the three exceptions contained in Section 408.123(f), we hold that such resolution in and of itself is not an exception to finality.  APD 132594-s.

The HO determined that the first MMI/IR certification from Dr. S did not become final because there was compelling medical evidence of a significant error in calculating the IW’s IR in that Dr. S failed to rate a medical condition that the parties have stipulated to be included in the compensable injury. However the AP reversed the HO’s finality determination and held that under the facts of this case, Dr. S’s failure to rate a medical condition to which the parties have stipulated at the CCH to be included in the compensable injury does not, by itself, constitute compelling medical evidence of a significant error in applying the appropriate AMA Guides under Section 408.123(f)(1)(A).  APD 150457-s.

The HO found that there was compelling medical evidence of a significant error on the part of Dr. H in applying the AMA Guides because he failed to include the range of motion measurements needed to calculate the IR. The AP clarified that the determination of whether there exists compelling medical evidence of a significant error by the certifying doctor in applying the AMA Guides or calculating the IR is based on the totality of the evidence, and the certifying doctor’s failure to include ROM measurements alone is not compelling medical evidence of a significant error. The AP further noted Rule 130.12(c) does not require that a narrative report be attached to the DWC-69.  Given that the HO found that Dr. H’s certification of MMI and IR is a valid certification, and Rule 130.12(c) does not require that a narrative report be attached to the certification, the certifying doctor’s IR contains no errors in applying the AMA Guides or in calculating the IR and the exception under Section 408.123(f)(1)(A) does not apply. APD 140574, See also 140340.

The HO found that the DD certification at issue did not become final because there was compelling medical evidence of a significant error in applying the Guides. In assessing the IR, the DD based the rating on an impairment for atrophy from Table 37 (“Impairment from Leg Muscle Atrophy”) and for loss of range of motion (ROM) for the right knee from Table 41 (“Knee Impairments”).  The HO stated in the decision that Dr. H assigned an IR for both ROM loss and atrophy in arriving at a 16% IR, and that “it is clear from the [AMA Guides] that one cannot use both methods to derive an appropriate [IR].”  However, the AP cited APD 040147 in which the AP affirmed the HO’s adoption of a similar rating where the certifying doctor assessed an impairment from both Table 37, 41 and 62 (Arthritis).  In that case, the HO accorded presumptive weight to the DD’s report and commented that the DD had the discretion to utilize more than one Table to arrive at the IR.  The Appeals Panel affirmed the HO’s IR determination and noted that no provision in the AMA Guides specifically precludes the DD’s approach to assessing the IW’s IR and that it was a difference in medical judgment on how to rate the IW’s injury. Therefore in this case, the AP held that it was within the doctor’s medical judgment to rate the knee injury by utilizing more than one table, and that does not, by itself constitute compelling medical evidence of a significant error in applying the Guides. APD 151869.

Reduction or Suspension (IIBs or SIBs) for Contribution from a Prior Compensable Injury (I15)

At the request of the IC, the DWC commissioner may order a reduction in IIBs and SIBs in a proportion equal to the proportion of a documented impairment that resulted from prior compensable injuries. TLC Section 408.084(a). In determining whether to allow a reduction, and the amount of the reduction, the commissioner shall consider the cumulative impact of the compensable injuries on the IE's overall impairment. TLC Section 408.084(b). At least two compensable injuries must exist for the IC to request contribution.

Burden of Proof

When contribution is sought due to a prior compensable injury, the IC has the burden of proof to establish that it is entitled to, and the amount of, contribution. The IC does not need to prove an exact percentage, but there must be sufficient evidence of a contribution percentage that is reasonably supportable. APD 961211.

A determination of contribution must be based on medical evidence, but the existence of medical evidence supporting contribution does not require an award of contribution. APD 941170. Likewise, the mere existence of a prior compensable injury is insufficient to support entitlement to contribution. APD 031237.

Cumulative Impact

To be entitled to contribution, the IC must provide an analysis showing the cumulative impact of the prior compensable injury and the latest compensable injury and how the injuries work together and the extent to which the prior compensable injury contributes to the current impairment. APD 941338. An IC's request for contribution cannot be denied solely because the cumulative impact analysis does not convert the impairment rating from the earliest compensable injury to a rating under the same version of the AMA Guides under which the latest compensable injury was rated. APD 030864-s.

In assessing cumulative impact, the starting point is to look at the recent impairment followed by looking back to the earliest impairment rather than starting with the earliest impairment and looking forward to events that have not yet happened. APD 960589.

An IC that does not provide an adequate cumulative impact analysis fails to meet its burden of proof and is not entitled to contribution. Entitlement to contribution is a question of fact for the ALJ to resolve. APD 042339.

Where IIBs and SIBs have been awarded and it is determined that an IC is entitled to contribution based on a prior compensable injury, SIBs and IIBs must be reduced in the same proportion. Ins. Co. of Pa. v. Moore, 43 S.W.3d 77 (Tex. App.—Fort Worth 2001, no pet.).

Effective Date

Contribution does not apply to income benefit payments which accrue prior to the filing of a request for contribution. APD 002211-s.

Recoupment for Contribution

It was undisputed that an overpayment had been made by the IC due to a DWC contribution award. An IC may only recoup overpayments on IIBs and SIBs that accrue on or after the date the IC files the request for contribution, which is eventually approved, with DWC. APD 050523-s.

Rate of Recoupment for Contribution

In determining whether to approve an increase or decrease in the recoupment rate, DWC must consider the cause of the overpayment and minimize the financial hardship that may reasonably be created for the IE. 28 TAC Section 126.16(d).

Contribution and Impairment Rating (IR)

The Appeals Panel has held it to be error for an ALJ to adopt an IR assigned by a doctor who applied an analysis of contribution from a prior compensable injury in assigning an IR for the IE when contribution is not an issue before the ALJ or actually litigated. APD 150378 and APD 111840.

Reduction/Suspension to Recoup Overpayment (I16)

[Cross-references: Reduction/Suspension (IIBs or SIBs) for Contribution from Prior Compensable Injury (I15);Wage Issues (W00-W06)].

Statutory and Rule Provisions.

Texas Labor Code (TLC) Section 408.0815, enacted as part of House Bill 2089, 82nd Texas Legislature Regular Session (2011), required the commissioner of workers’ compensation to establish by rule a procedure through which an IC could recoup underpayments and overpayments of workers’ compensation income benefits. Before this legislative change, without a specific statutory or rule provision an IC could not recoup the overpayment of income benefits from an IE’s future benefits. APD 060318. An exception was when the overpayment was due to a miscalculation of the IE’s AWW.

Concerning overpayments, the procedure under TLC Section 408.0815(a)(1) would allow an IC to recoup an overpayment of income benefits from future income benefit payments that are not reimbursable under TLC Section 410.209 (relating to overpayments of benefits eligible for reimbursement by the Subsequent Injury Fund (SIF)).

The procedure for IC recoupment of overpayments of income benefits had to include a process by which an IC must notify an IE of:

• an overpayment of income benefits;

• the time frame and methodology by which an IC could recoup an overpayment through the reduction of a future income benefit payment; and

• a method for coordinating overpayments that may be recouped from future income benefits and reimbursements described by TLC Section 410.209.

TLC Section 408.0815(b)(3)-(5).

Under TLC Section 408.0815(c), the procedure for recouping overpayments under subsection (a)(1) must take into consideration the cause of the overpayment and minimize the financial hardship to the IE.

Effective on January 1, 2012, 28 Texas Administrative Code (TAC) Section 126.16 (titled “Procedures for Recouping Overpayments of Income Benefits”) implemented TLC Section 408.0815. That rule applies only to IC overpayment of income benefits. The rule does not apply to:

1) IC overpayment of death, burial, or medical benefits;

2) redesignation of income benefits; or

3) repayments pursuant to TLC Section 415.008 (titled Fraudulently Obtaining or Denying Benefits; Administrative Violation). 28 TAC Section 126.16(a).

Under 28 TAC Section 126.16(b), if an IC determines that it has overpaid income benefits to an IE, the IC may recoup the overpayment from future income benefit payments as follows:

1) The IC must notify the IE in writing that it will begin withholding benefits to recoup an overpayment. The notice must be in plain language and in English or Spanish, as appropriate. The notice must also include the reason for the overpayment; the amount of the overpayment to be recouped from future income benefit payments; the date recoupment will begin; and relevant documentation that supports the IC’s determination of an overpayment, such as a wage statement or a supplemental report of injury. The notice must also advise the IE that if the IE disagrees that there has been an overpayment, the IE may request dispute resolution through the dispute resolution processes outlined in Chapters 140 - 144 and 147 of this title (relating to Dispute Resolution), including expedited dispute resolution. The IC may not begin recoupment of the overpayment earlier than the second income benefit payment made after the written notice has been sent to the IE.

2) If the IE’s income benefits are not concurrently being reduced to pay approved attorney's fees or to recoup a DWC-approved advance, the IC may recoup the overpayment under this subsection in an amount not to exceed 25% of the income benefit payment to which the IE is entitled, except as provided by subsection (c) of this section.

3) If the IE’s income benefits are concurrently being reduced to pay approved attorney's fees or to recoup a DWC-approved advance, the IC may recoup the overpayment under this subsection in an amount not to exceed 10% of the income benefit payment to which the IE is entitled, except as provided by subsection (c) of this section.

28 TAC Section 126.16(c) provides that, if the IC wishes to recoup the overpayment in an amount greater than that permitted by subsection (b) of this section, the IC must attempt to enter into a written agreement with the IE and, if unable to do so, request dispute resolution through the dispute resolution processes outlined in Chapters 140 - 144 and 147 of this title. If the IE wishes to provide for recoupment of the overpayment in an amount less than the percentage chosen by the IC, the IE must attempt to enter into a written agreement with the IC and, if unable to do so, request dispute resolution through the dispute resolution processes outlined in Chapters 140 - 144 and 147 of this title.

In determining whether to approve an increase or decrease in the recoupment rate, DWC must consider the cause of the overpayment and minimize the financial hardship that may reasonably be created for the IE. 28 TAC Section 126.16(d).

Under 28 TAC Section 126.16(e), the IC must provide notice to the IE and DWC of any change in the payment of an IE’s income benefits in accordance with the requirements of 28 TAC Section 124.2 of this title (relating to Insurance Carrier Reporting and Notification Requirements). The IC’s notice to the IE must identify the amount that was overpaid.

The rule does not create an entitlement for an IC to seek reimbursement from the SIF except as provided by TLC Sections 403.006 (relating to SIF), 408.0041 (relating to Designated Doctor Examination), 410.209 (relating to Reimbursement for Overpayment), and applicable DWC rules. 28 TAC Section 126.16(f).

Under 28 TAC Section 126.16(g), if an IE does not agree that he or she has received an overpayment of income benefits, the IE may request dispute resolution through the dispute resolution processes outlined in Chapters 140 - 144 and 147 of this title, including expedited dispute resolution.

The rule does not affect DWC’s authority to identify and take action on overpayments on its own motion. 28 TAC Section 126.16(h).

The enactment of TLC Section 408.0815 also prompted changes to 28 TAC Section 128.1 (dealing with AWW), to remove language limiting recoupment to a miscalculation of the IE’s AWW.

 
Income Benefits vs. Medical Benefits.

As noted above, ICs can only recoup overpayments of income benefits, not medical benefits. Income benefits and medical benefits are of a different kind and character, and one may not be reached to satisfy an overpayment of the other no matter the reason for the overpayment. APD 002508-s. Travel reimbursement for medical care is a medical benefit. APD 022547. See 28 TAC Section 134.110 on reimbursement for travel expenses for medical treatment. [Cross-reference: Reimbursement for Medical Travel Expenses (M02)]

 
AWW and Recoupment.

The ALJ found that the IC was entitled to reduce the IE’s IIBs to recoup a previous overpayment of $2,699.48. The overpaid amount was based on a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) from November 2012 stating that the IE was paid $18,320.69 in benefits but was only entitled to $15,621.21. The IC had initially paid benefits based on a reasonable assessment of the AWW, but, after it received a DWC Form-003, Employer’s Wage Statement, the AWW was recalculated at a lower amount. The parties later agreed to an AWW of $735.86 as part of a Benefit Dispute Agreement (DWC Form-024) in November 2013. The AP reversed and remanded the decision of the ALJ because the amounts found in the PLN-11 were not based on the AWW agreed to by the parties in the later DWC Form-024 and the ALJ did not consider the parties’ agreement in determining the recoupment issue. The AP directed the ALJ to make a finding of the AWW that should be used to decide the IC’s overpayment, if any, and identify the calculations and relevant time periods used to arrive at the amount determined to be overpaid, if any. APD 140981.

 

Line of Duty Pay.

In City of San Antonio v. Vakey the Fourth Court of Appeals noted that line of duty payments made under Local Government Code Section 143.073 are not considered salary supplements or salary continuation. It further noted that, while TLC Section 504.051 permits a city self-insured to offset the amounts paid for TIBs by the amounts paid for line-of-duty pay, it is the amount paid under Local Government Code Section 143.073 that is reduced, not the workers' compensation benefits. City of San Antonio v. Vakey, 123 S.W.3d 497 (Tex.App.—San Antonio 2003, no pet.).

Redesignation of Overpaid TIBS as IIBS.

TIBs continue until the IE reaches MMI, if the IE has disability, and an IE's entitlement to IIBs, as well as the IIBs accrual date, begins on the day after the IE reaches MMI. TLC Sections 408.101(a); 408.102(a); and 408.121(a); 28 TAC Section 130.8(a).

Where an IC has paid TIBs to an IE after what is later determined to be the MMI date, the TIBs payments made after the MMI date are redesignated as IIBs, and the IC can take credit as IIBs those income benefits it paid to the IE as TIBs after the MMI date. APD 94872. The redesignation of income benefits is different from recoupment, which allows for reduction or suspension of income benefits to offset a previous overpayment. APD 110692.

Redesignation of SIBs as Lifetime Income Benefits (LIBs)

The IE had been paid TIBs, IIBs, and SIBs through 401 weeks. The parties stipulated that the IE was entitled to LIBs with an accrual date of June 10, 2016. The ALJ determined that the IC was not entitled to redesignate SIBs paid after June 10, 2016, as LIBs, reasoning that LIBs are different from SIBs, which she wrote are payable for an inability to earn a pre-injury wage. In her discussion, the ALJ noted that an IE could return to work and still receive LIBs. She concluded that LIBs are paid for specifically listed medical conditions, and no express provision allows for a reduction or elimination of the benefits based on previous amounts paid for SIBs. The AP disagreed, citing APD 000508. In that case, the AP noted the ALJ’s determination that IEs are not entitled to concurrently draw LIBs and IIBs appears to be a correct statement under the law, and it perceived no error with the ALJ’s general conclusion. Although APD 000508 applied to IIBs, the AP in 220175-s viewed the reasoning for the holding in that case to apply as well to the redesignation of SIBs, which it stated was analogous to the situation in which an IC pays TIBs to the IE after what is later determined to be the MMI date. In that circumstance, TIBs payments made after the MMI date are redesignated as IIBs, and the IC can take credit as IIBs those income benefits it paid to the IE as TIBs after the MMI date. The AP distinguished between redesignation of benefits and recoupment. Unlike recoupment, redesignation is a recharacterization of the benefits paid. The AP reversed the ALJ’s determination and rendered a decision that the IC is entitled to redesignate SIBs paid after June 10, 2016, as LIBs. APD 220175-s.

Entitlement to Commutation (I17)

An IE may elect to receive the remainder of IIBs to which he or she is entitled in a lump sum if the IE has returned to work for at least three months, earning at least 80% of the IE's AWW. An IE who elects to receive the remainder of his or her IIBs in a lump sum is not entitled to any additional income benefits for the compensable injury. See Texas Labor Code (TLC) Section 408.128 and 28 Texas Administrative Code (TAC) Section 147.10.

Election to Commute Final.

An IE's election to receive IIBs in a lump sum is final and binding if it is properly made in accordance with the requirements of TLC Section 408.128 and 28 TAC Section 147.10. APD 992541. An IE legally qualified to commute IIBs under TLC Section 408.128 and 28 TAC Section 147.10 will not be relieved of the effects of his or her election to commute IIBs based on a finding of mutual mistake regarding the extent of the compensable injury because there is no good cause exception to be relieved of the effects of the election to commute IIBs. APD 080469-s. The redesignation of income benefits is different from recoupment, which allows for reduction or suspension of income benefits to offset a previous overpayment. APD 110692.

The IE’s election to receive his remaining IIBs in a lump sum was approved by the IC. The IE’s Election for Commuted IIBs (DWC-51) stated that he had “no lost time” in the date returned to work blank, and checked the box stating that he had returned to work for at least three months; however, the IE left the “present rate of pay” blank. The ALJ determined that the commutation of IIBs was not valid or final. The ALJ noted that while 28 TAC Section 147.10 does not specifically require the date of return to work and the present rate of pay be included on the DWC-51, it does require that an IE must have returned to work for at least three months earning at least 80% of his or her AWW. Further, the ALJ reasoned that, if the information requested by the DWC-51 is not included, a determination cannot be made as to whether an IE is eligible to commute IIBs. The AP reversed, holding that, on its face, the DWC-51 was sufficient to meet the statutory requirements to commute IIBs under Section 408.128. The AP also noted that the evidence established that the IE returned to work for at least three months earning at least 80% of the AWW. APD 162431.

Election to Commute Not Final.

An IE's election to receive IIBs in a lump sum may not be final and binding if the strict requirements of TLC Section 408.128 and 28 TAC Section 147.10 are not complied with.

Even though the IC approved the IE's election to receive his remaining IIBs in a lump sum based upon the IE's representations that he had returned to work for at least three months earning at least 80% of his AWW, the election was held to be invalid. The evidence presented at the CCH showed that the IE had not returned to work for at least three months earning at least 80% of his AWW, and therefore, the IE was not legally qualified to commute IIBs pursuant to TLC Section 408.128 and 28 TAC Section 147.10. APD 941627.

Abandonment of Medical (I18)

A finding that an IE has abandoned medical treatment, standing alone, is generally not in itself dispositive of anything. APD 950295. Normally, abandonment of medical treatment only serves to trigger an inquiry to the appropriate doctor as to whether MMI has been reached. APD 001587. Further, there is no provision in the Act or Rules for an IE's disability period to be automatically terminated based solely on a determination that there has been an abandonment of medical treatment. APD 051731. See also APD 162020.

Entitlement to LIBs (I22)

In some limited cases, the compensable injury is so severe that the IW is entitled to LIBs. LIBs are income benefits that are paid until the IW's death. Subject to Section 408.061 regarding maximum weekly benefits, the amount of LIBs is equal to 75% of the IW's AWW, and benefits are increased at a rate of 3% a year. Section 408.161(c). Section 408.161 provides as follows:

(a) Lifetime income benefits are paid until the death of the employee for:

(1) total and permanent loss of sight in both eyes;
(2) loss of both feet at or above the ankle;
(3) loss of both hands at or above the wrist;
(4) loss of one foot at or above the ankle and the loss of one hand at or above the wrist;
(5) an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg;
(6) for a compensable injury that occurs on or after September 1, 1997, a physically traumatic injury to the brain resulting in incurable insanity or imbecility (for compensable injuries which occurred prior to September 1, 1997, there has to have been an actual injury to the skull which resulted in incurable insanity or imbecility); or
(7) for a compensable injury that occurs on or after June 17, 2001, third degree burns that cover at least 40 percent of the body and require grafting, or third degree burns covering the majority of either both hands or one hand and face.

(b) For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of the body part.

Whether or not an IW has presented sufficient credible evidence to establish entitlement to LIBs is a question of fact for the HO to resolve. APD 042178.

Accrual Date.

LIBs accrue and become payable on the date that the IW suffers from one of the conditions listed in Section 408.161(a), and not before. Once an IW is adjudicated eligible to receive LIBs, LIBs should be paid retroactively to the date the IW first became eligible. Mid-Century Ins. Co. v. Texas Workers' Compensation Commission, 187 S.W. 3d 754 (Tex. App.-Austin 2006, no pet.).

Burns.

The IW sustained a compensable injury in (Year of Injury) resulting in burns to various parts of his body, including his hands. The IW contended that he has third degree burns covering the majority of both hands and is entitled to LIBs under Section 408.161(a)(7). The AP reversed the HO's determination that the IW is not entitled to LIBs and rendered a decision that the IW is entitled to LIBs because the medical evidence supported the IW's contention and the HO's determination was contrary to the great weight and preponderance of the evidence. APD 050314.

Incurable Insanity/Imbecility.

For injuries occurring on or after September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there has been a physically traumatic injury to the brain resulting in incurable insanity or imbecility. For injuries occurring prior to September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there was an injury to the skull resulting in incurable insanity or imbecility.

Brain Injury (injuries on or after September 1, 1997).

The IW suffered a traumatic brain injury with hemorrhage while participating in boxing drills and was hospitalized for 2 ½ weeks in 2000.  The IC accepted “a compensable head/brain injury.”  The HO considered the evidence presented in light of several factors, including the definitions of insanity and imbecility contained in Black’s Law Dictionary and Dorland’s Illustrated Medical Dictionary, and commented that those definitions “imply more of a congenital and generic condition and not one caused by an industrial accident.”  The HO noted that the majority of APDs at that time focused on whether an injury to the skull occurred, or whether the injury caused the IW’s deficits based on Section 408.161 applicable prior to September 1, 1997.  The HO cited National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950 (Tex. App.—Texarkana 1998, no pet.), and Modreski v. General Motors Corporation, 326 N.W.2d 386 (1981), a Michigan Supreme Court case regarding a definition of the terms “insanity” and “imbecility”.  The HO determined that the IW was entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility.  The AP, stating that this was a case of first impression in defining incurable insanity or imbecility, affirmed the HO’s determination.  The AP noted that Burnett contained instructive language on the definition of incurable insanity or imbecility and cited a Virginia court case (Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 366 S.E.2d 271 (1988)), which applied a nontechnical meaning of the term “imbecility” to mean an irreversible brain injury which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes.  The AP also noted that Modreski stated that a worker’s mental illness is “insanity” if he or she suffers severe social dysfunction and a worker’s intellectual impairment is “imbecility” if he or she suffers severe cognitive dysfunction, and that social or cognitive dysfunction is “severe” if it affects the quality of the worker’s personal, non-vocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.  APD 121131-s.

IW sustained a closed head injury and concussion when he fell from a ladder and struck the ground in (Year of Injury). The HO determined that the IW is not entitled to LIBs from September 13, 2013, through the date of the CCH based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility.  The HO stated in her decision that regarding “imbecility,” the standard that will be used is that of a mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.  The HO did not discuss any other factors in reaching her decision regarding entitlement to LIBs for incurable imbecility besides the definition of imbecility contained in the dictionary.  The AP cited to Chamul v. Amerisure Mutual Insurance Company, 2016 Tex. App. LEXIS 1263 (Tex. Civ. App.–Houston [1st Dist.] 2016 no writ history), in which the court noted that attaching a narrow definition to limit a benefit without statutory text to support that interpretation violates the rule of liberal construction and would result in the exclusion of claimants having a mental age of less than three years from receiving LIBs.  See Barchus v. State Farm Fire & Cas. Co., 167 S.W.3d 575 (Tex. App.–Houston [14th Dist.] 2005, pet. denied).  The AP held that the HO erred in linking her analysis of the IW’s entitlement to LIBs for a physically traumatic injury to the brain resulting in incurable imbecility solely to a single factor rather than considering additional factors such as those discussed in APD 121131-s, and Chamul.  The AP reversed the HO’s determination that the IW is not entitled to LIBs and remanded the LIBs issue to the HO.  APD 152492.

The IW sustained multiple injuries, including a closed head injury, in a MVA in (Year of Injury). The IW asserted that the compensable injury included Post-traumatic Alzheimer's Dementia and that he is entitled to LIBs. The IW's court appointed guardian testified that the IW requires constant around the clock care. The AP affirmed the HO's determination that the compensable injury included Post-traumatic Alzheimer's Dementia and that the IW was entitled to LIBs due to a physically traumatic injury to the brain resulting in incurable imbecility. APD 041416.

Depression.

The IW sustained her compensable injury in (Year of Injury) when she fell from a ladder and sustained a closed head injury. In the months following the injury, the IW began complaining of multiple symptoms including headaches, depression, memory defects, inattentiveness, and suicidal thoughts. No doctor documented any external trauma to the head. The trial court found that the IW was entitled to LIBs because she had sustained a head injury resulting in depression and because her depression qualifies as incurable insanity. The court of appeals determined that the IW was not entitled to LIBs. The appeals court noted that, according to dictionary references, the term "psychosis" is now used in lieu of what was formerly termed "insanity." There was no evidence that the IW suffered from any psychotic disorder symptoms, and psychosis is distinguishable from depression by its symptoms. Because the court of appeals determined that depression does not equate to incurable insanity, it did not discuss injury to the skull. National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950, (Tex. App.-Texarkana 1998, no pet.). (Due to the DOI this case was decided under law predating the 1989 Act; however, the proposition of law remains valid under the current Act.)

Skull Injury (Injuries Prior to September 1, 1997).

The IW sustained his compensable injury in (Year of Injury), when the truck he was sitting in was struck by lightning. Following the injury, the IW was adjudicated to be incompetent, and the court appointed a guardian. The IW presented evidence that the lightning strike caused part of his brain to die, and that he now suffered from incurable imbecility. No evidence was presented to show that the IW sustained a blow to his skull or any injury to his skull. The HO properly determined that the IW was not entitled to LIBs because he did not sustain an injury to his skull. APD 951336.

The IW sustained a compensable injury in (Year of Injury) when he fell and struck his head. The trial court found that the IW sustained an injury to the skull structures resulting in incurable insanity or imbecility, but denied the IW LIBs because he did not fracture his skull. The court of appeals reversed the judgment of the trial court and rendered judgment that the IW is entitled to LIBs. The appeals court held that an "injury to the skull" does not require a fracture of the skull to meet the "injury to the skull" requirement in Section 408.161(a)(6). Barchus v. State Farm Fire & Cas. Co., 167 S.W. 3d 575 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).

Injury to the Spine.

Section 408.161(a)(5) provides that an IW that sustains a compensable injury to the spine which results in permanent and complete paralysis of both arms, both legs, or one arm and one leg is entitled to LIBs. Claimed entitlement to LIBs pursuant to subsection (a)(5) is frequently argued and evaluated in connection with entitlement to LIBs pursuant to subsections (a)(2) and (a)(3) (see TOTAL LOSS OF USE, infra). While there are similarities between entitlement to LIBs based upon an injury to the spine and total loss of use, what needs to be proven is different. APD 011861. Whether or not the IW has presented sufficient credible evidence to establish a spinal injury resulting in permanent and complete paralysis is a question of fact for the HO to resolve. APD 031510.

The IW sustained a compensable injury while picking up a machinery part. Initially, the IW thought he had just pulled a muscle, but several days later he began to experience weakness in his leg along with a limp. The IW sought medical care, was diagnosed with a lumbar strain, and was given conservative care. The IW returned to work after receiving treatment, but a few weeks later his symptoms returned. The IW was diagnosed as having a compression of the spinal cord in the cervical spine, he received surgery, and again returned to work. After several months the IW began to experience weakness in his legs. The IW returned to his doctor who felt the IW's spinal cord had been damaged. The doctor further believed that part of the problem was the development of scar tissue at the spinal cord which would eventually get worse and cause loss of voluntary motor control of the IW's legs. Both of the IW's legs are now paralyzed. The HO accepted the IW's medical evidence which showed that the IW's paralysis was caused by the compensable injury and the resulting treatment, despite contrary medical evidence submitted by the IC. The HO determined that the IW was entitled to LIBs. The cause of the IW's paralysis in both legs, and his entitlement to LIBs presented factual questions for the HO to resolve. APD 002197.

The IW had lumbar spine surgery for his compensable back injury. The AP affirmed the HO's determination that due to the compensable injury, the IW had totally and permanently lost the functional use of his legs. The AP construed that determination to be the equivalent of a finding that the IW's legs no longer possessed any substantial utility as members of his body. The AP reversed the HO's determination that the IW is not entitled to LIBs because the IW's legs were not completely paralyzed and rendered a decision that the IW is entitled to LIBs based on the total and permanent loss of use of both feet at or above the ankle. The AP cited prior APDs and court decisions in rejecting the argument that because the IW had a spinal injury, the only way the IW could prove entitlement to LIBs was to show permanent and complete paralysis of his legs under Section 408.161(a)(5). The AP noted that the court in Hartford Underwriters Insurance Co. v. Burdine, 34 S.W.3d 700 (Tex. App.-Fort Worth 2000, no pet.), a pre-1989 Act case, had approved entitlement to LIBs based on the total and permanent loss of use of the legs and/or feet, as total loss of use is defined in Travelers Insurance Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962), where the injury was to the spine, and that the court in Pacific Employers Insurance Co. v. Dayton, 958 S.W.2d 452 (Tex. App.-Fort Worth 1997, pet. denied) had rejected the argument that the standards applied to loss of use under the prior law should not apply to cases decided under the 1989 Act. APD 070063-s.

Revisiting Entitlement to LIBs.

In an unappealed 1999 CCH decision, the IW was found to have no substantial use of his legs as a result of a compensable spinal injury as of the date of the CCH, that the loss of leg function was permanent, and, therefore, the IW was entitled to LIBs. However, by August 2001 the IC discovered the IW could walk very well. The IC initiated the dispute resolution process to terminate entitlement to LIBs. At the subsequent CCH the HO found that as of the date of the CCH the IW had substantial use of his legs; that his condition had materially changed after the prior CCH; that the IC using due diligence could not have discovered the IW had use of his legs before the prior CCH; and that there is no jurisdiction to terminate LIBs. The AP reversed and rendered that there was jurisdiction to terminate LIBs and that the IW's LIBs are terminated as of the date of the subsequent CCH. In so finding the AP noted that an IW is entitled to certain medical benefits during his or her lifetime, and that the Division retains jurisdiction to resolve disputes regarding medical treatment; as LIBs may be paid for an IW's lifetime, the AP perceived no rational basis for holding that the Division has no continuing jurisdiction to resolve disputes over entitlement to these benefits. APD 020432-s.

Subsequent Injury Fund (SIF). [Cross-reference: Liability of Subsequent Injury Fund Carrier Reimbursement (C21) ].

Sections 408.162 and 131.3 provide that if a subsequent compensable injury, along with the effects of a prior compensable injury, result in a condition which entitles an IW to LIBs, the second IC is liable for benefits only to the extent that the subsequent injury would have entitled the IW to benefits had there been no prior injury. The SIF pays the IW the difference between the LIBs amount and the TIBs, IIBs, and SIBs amounts paid by the second IC. APD 990321.

Total Loss of Use.

An IW who, as a result of the compensable injury, has suffered a total and permanent loss of use of both feet at or above the ankles; both hands at or above the wrists; or one foot at or above the ankle and one hand at or above the wrist, is entitled to LIBs pursuant to Section 408.161(a)(2), (3), or (4) and (b).

Standard for Loss of Use.

In determining whether an IW is entitled to LIBs based upon a total loss of use resulting from injury, the test, is (1) whether the member no longer possesses any substantial utility as a member of the body or (2) whether the condition of the injured member is such that it keeps the IW from getting and keeping employment requiring the use of the member. See Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962); APD 94689. The IW need not prove both prongs of the test to establish entitlement to LIBs. The IW need only prove one of the two prongs to establish entitlement to LIBs. APD 941065. In addition, to qualify for LIBs, the total loss of use must be permanent. Pacific Employers Ins. Co. v. Dayton, 958 S.W. 2d 452 (Tex. App. -Fort Worth 1997, pet. denied).

Loss of Use Established.

The IW sustained a compensable injury which included diabetes and motor sensory polyneuropathy, affecting his lower extremities. The IW's doctor testified that the IW's feet, at or above the ankles, no longer possessed any substantial utility as members of his body and that, due to the condition of his feet, the IW was not able to get and keep employment requiring the use of the feet. The doctor further stated that the IW's condition was expected to be permanent. The IW testified that he was confined to a wheelchair. The IC presented evidence to contradict the IW's doctor. The AP affirmed the HO's determination that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet. APD 012441.

Loss of Use Not Established.

The IW sought entitlement to LIBs based upon a total loss of use of her hands. The IW testified regarding the activities she could not perform, and presented medical evidence regarding her upper extremity condition and her ability to work. The IC presented conflicting evidence to establish that the IW's condition was not as severe as she claimed it to be. The HO determined that the IW was not credible, partially because a video depicted her doing activities which she testified she could not do. The AP affirmed the HO's determination that the IW was not entitled to LIBs based upon a total and permanent loss of use of her hands. APD 040368.

Loss of Use - Evidence of Condition at Time of Trial Considered.

The IW began working for the employer as a food service worker. Two years later she was transferred to a full-time custodian position. In the summer of 2000 the IW began to experience numbness, pain, and a lack of grip strength in her hands. The IW was diagnosed with CTS and ulnar entrapment to the left elbow and received surgery on both wrists and left arm. Following the surgeries the IW underwent a FCE and was determined to have the ability to perform only sedentary to light work. The IW attempted working a job in a hotel laundry and later as a custodian at an airport but quit because she was unable to perform the two jobs due to her limitations. A CCH was held on December 19, 2002. The HO determined the IW was not entitled to LIBs, and the AP affirmed the HO's determination. On January 20, 2003, the IW returned to her orthopedic specialist and told him she could no longer perform housework due to the condition of her hands. The orthopedic surgeon noted in his report that the IW's difficulty would prevent her from performing work activities and that the IW was "unable to work." In the summer of 2004 the IW returned to the orthopedic surgeon, who released the IW to work with the limitations of the previous FCE. At the time of the trial the IW could not grasp objects and had constant pain in her hands, elbows, and shoulders. She was able to perform only a little housework, could drive a car, could hold a telephone for a limited time, and could write although not a lot. The IW was also able to brush her hair and teeth as well as dress herself, although these activities required much time to complete. The trial court reversed the Division's determination and ordered the IW was entitled to recover LIBs based on the jury's finding that the work injury resulted in the total loss of use of both hands at or above the wrists. The appellate court held the evidence, including the evidence of the IW's condition at the time of trial, sufficiently supported the jury's verdict and affirmed the IW's entitlement to LIBs. El Paso Independent School District v. Pabon, 214 S.W.3d 37 (Tex. App.-El Paso 2006, no pet.). [Note: It does not appear that the LIBs issue at the CCH was limited to entitlement to LIBs "as of the date of the CCH" as in the Jackson case, summarized below.]

Loss of Use - Evidence of Deterioration After CCH not Allowed at Trial.

The IW injured his leg and left knee while in the course and scope of his employment. The disputed issue at the CCH was whether the IW was entitled to LIBs based on the total and permanent loss of use of both feet "as of the date of the hearing." The HO determined that the IW was not entitled to LIBs as of the date of the CCH, and the AP affirmed the HO's determination. The IW sought judicial review of the AP decision. Prior to the trial the parties exchanged motions in limine. The Division's motion included a request that no party argue or present any evidence on any issue other than the IW's entitlement to LIBs as of the date of the CCH; however, the trial court denied the Division's request, allowed the IW to file a trial amendment, and announced that it would allow evidence of the IW's disability as of the date of the trial. The Division then appealed the trial court's denial of its plea to the jurisdiction, contending that the trial court's jurisdiction was limited to the issues decided by the AP, and, therefore, the trial court could only consider whether the IW was entitled to LIBs as of the date of the CCH. The court of appeals agreed with the Division and ruled that the trial court lacked jurisdiction to consider the IW's eligibility for LIBs beyond the date of the CCH. In so ruling, the court noted that the HO determined the IW's eligibility for LIBs "as of the date of the hearing," and whether the IW is entitled to LIBs as of the date of the trial is a related but separate question. The court reasoned that to allow consideration of later facts would convert the trial from an appeal to a trial de novo. The court further noted that the HO is the only individual with authority to excuse exhaustion of administrative remedies upon a showing of good cause (good cause for not raising an issue at the BRC), and that the legislature made clear that the HO is to make the initial determination in workers' compensation disputes and all subsequent proceedings are limited to a review of the HO's determination. The court also stated that because the legislature did not afford trial courts the authority to excuse exhaustion of administrative remedies, the court assumes that the legislature determined that the benefits of having HOs make all initial determinations outweigh any potential efficiencies that may be gained with a complete trial de novo. The appeals court held that the trial court lacked jurisdiction to consider the IW's eligibility for LIBs beyond the date of the CCH and remanded the case to the trial court. Texas Department of Insurance, Division of Workers' Compensation v. Jackson, 225 S.W.3d 734, (Tex. App.-Eastland 2007, no pet.).

Prosthesis.

The HO determined that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle and the AP affirmed. The IC argued that because the IW wore a prosthesis on his right leg, he was able to undertake certain tasks and therefore the member had substantial utility. The argument was rejected analogizing it to an argument that a blind man that has a seeing eye dog is not really blind. APD 952100.

Failure to Attend Designated Doctor Appointment (I24)

An IE who, without good cause, fails or refuses to attend a scheduled designated doctor examination has committed an administrative violation and is not entitled to TIBs for the time during which he or she fails to submit to the examination. TLC Section 408.0041(i) and (j). Good cause is a question of fact for the ALJ to resolve. APD 941656. An IE who, without good cause, fails to attend a referral examination the designated doctor ordered is also subject to suspension of TIBs, since the referral appointment is a part of the designated doctor examination. APD 210284.

In the absence of a DWC finding of good cause, an IC may presume an IE did not have good cause for failure to attend a scheduled designated doctor examination under the circumstances listed in 28 TAC Section 127.25(b) and suspend TIBs as described in TLC Section 408.0041(j) and 28 TAC Section 127.25(a). An IC that has suspended TIBs under TLC Section 408.0041 and 28 TAC Section 127.25(a) is to reinitiate TIBs as of the date the IE submits to the examination unless the designated doctor finds the IE has reached MMI or is otherwise not eligible for income benefits. 28 TAC Section 127.25(e).

Good Cause.

The IE failed to submit to a scheduled designated doctor examination. The ALJ determined the IE had good cause for failing to attend the appointment because the IE did not receive notice of the appointment. The AP affirmed, noting that the credible evidence did not show the notice was sent to the IE or to his representative. APD 032927. Note: this case was decided under now-repealed 28 TAC Section 130.6, a forerunner to the current version of the Rule, 28 TAC Section 127.25.

No Good Cause.

The IE failed to submit to a scheduled designated doctor examination. The IE claimed a DWC employee told him he did not have to attend the appointment because he had been approved to have surgery on a date after the scheduled appointment. The IE contacted DWC after the IC suspended TIBs to request that the designated doctor examination be rescheduled. The DRIS notes did not reference a conversation with a DWC employee where the IE was advised he did not have to attend the examination. The ALJ was not persuaded that a DWC employee told the IE he did not have to attend the appointment and determined that the IE did not have good cause for failing to attend the appointment. The AP affirmed. APD 030524. Note: this case was also decided under now-repealed 28 TAC Section 130.6.

No Good Cause.

The IE testified in the CCH that her attorney advised her not to attend a scheduled designated doctor examination and that he would have other doctors see her in relation to her work-related injury. The ALJ decided that the IE’s reliance on her attorney’s advice to not attend the examination constituted good cause. The AP reversed the ALJ’s decision, noting that bad advice from one’s own attorney is not an excuse for failing to comply with DWC requirements. The ALJ’s determination that the IE had good cause for failing to attend the designated doctor examination was reversed and the AP rendered a new decision that the IE did not have good cause. APD 151718.

Entitlement to Multi-Employer Benefits (I25)

[Cross-references:Amount of AWW (W01);Multiple Employment Employee (W06)]

When an IE is employed by more than one employer on the DOI, the IC shall calculate the AWW for that IE using the wages from all of the employers. For this purpose, the IE is required to submit a Multiple Employment Wage Statement (DWC Form-003ME) to the IC. 28 TAC Section 128.1(h).

Claim Employers.

The claim employer is who the IE worked for at the time of the injury and with whom the IE filed a claim for workers' compensation benefits. 28 TAC Section 122.5(a)(1). The portion of the AWW based on employment with the claim employer shall be calculated according to how the IE's AWW would be determined if the IE did not have multiple employment. 28 TAC Section 128.1(h)(1).

Non-Claim Employers.

A non-claim employer is any employer, other than the claim employer, who employed the IE on the DOI. 28 TAC Section 122.5(a)(2). An IE employed by a non-claim employer, in addition to the claim employer, at the time of the injury is allowed an adjustment in income benefits based on this employment.

Under 28 TAC Section 122.5(d), the Multiple Employment Wage Statement shall include:
(1) the [IE’s] name, address, and social security number;
(2) the date of the [non-claim employer’s] hire of the employee;
(3) the [DOI];
(4) the [non-claim employer’s] name, address, and federal tax identification number;
(5) the name and phone number of a person at the [non-claim employer] who can be contacted to verify the wage information (unless the wage information was not provided by a person at the [non-claim employer] - such as if the wage information came from the Texas Workforce Commission or the employee's pay stubs);
(6) the wage information required by subsection (e) of this section with documentation that supports the wage information being reported; and
(7) a certification that the wage information provided includes all wage information required by subsection (e) of this section and that the information is complete and accurate.

Among other issues in the case, the ALJ decided that the IE was employed by a non-claim employer, but she was not entitled to increased income benefits under TLC Section 408.042 and 28 TAC Section 128.1(h). The ALJ’s decision on this issue was based on her statement that she could not determine when the IE filed the Multiple Employment Wage Statement with DWC and the IC. The AP found that the ALJ’s failure to consider the document under those circumstances was legal error, writing that the IE effectively submitted the document to the IC and DWC by the exchange of that document and its admission into evidence at the CCH. In addition, the AP pointed to APD 151496-s, in which it clarified that 28 TAC Section 122.5 does not establish a deadline for filing a Multiple Employment Wage Statement. The AP ultimately affirmed the ALJ’s decision that the IE was not entitled to increased income benefits under TLC Section 408.042 and 28 TAC Section 128.1(h), because the Multiple Employment Wage Statement did not contain all of the information required in 28 TAC Section 122.5(d), namely the non-claim employer’s address or federal tax identification number. APD 171228.

The portion of the IE's AWW that is based on employment with a non-claim employer shall be calculated by adding together the wages paid to the IE during the 13 weeks immediately preceding the injury and dividing that result by 13. If the IE has not worked for 13 weeks or more prior to the DOI, the wages used to determine the AWW are those paid by the employer to a similar employee, who performed similar services and earned wages during the previous 13 weeks. If there is no similar employee at the employer's business, the AWW is determined using the wages earned by a similar employee who performed similar services in the same vicinity. The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13. 28 TAC Section 128.1(h)(2). Wages used to determine the AWW from a non-claim employer shall include only those wages reported for federal income tax purposes. TLC Section 408.042(e); 28 TAC Section 128.1(h)(2). The IE must have earned income from the non-claim employer during the 13 weeks prior to the DOI or there can be no adjustment to the AWW for multiple employment. APD 030164-s. The IE has the burden to establish the wages earned from the non-claim employer. APD 052864-s. A Multiple Employment Wage Statement may be filed after the date of MMI. APD 151496-s, referenced in the APD 171228 case summary above, clarifies that 28 TAC Section 122.5 does not establish a deadline for filing a Multiple Employment Wage Statement to the IC. 28 TAC Section 122.5(f) defines the time period, up to the date the IE reaches MMI, for which IEs filing Multiple Employment Wage Statements must report any change in employment status or wages to the IC.

Volunteer Firefighters.

The IE sustained a compensable injury while performing his duties as a volunteer firefighter. In addition to his work as a volunteer firefighter, the IE earned wages from two different employers. The ALJ calculated a wage for the IE as a volunteer firefighter and then combined that amount with the wages from the IE’s employment with the two non-claim employers to determine his AWW. The AP reversed and rendered, holding that, because the IE earned no wages as a volunteer firefighter, his AWW could only be based on his wages from the two non-claim employers. APD 050140.

SIBs. (I31 - I42)

SIBs/Initial (First) Quarter (I31) and SIBs Subsequent Quarters (I32 - I39).

In some cases an IE will be entitled to SIBs upon the expiration of IIBs. SIBs accrue on the latter of (1) the first day of the applicable quarter, or (2) the date the DWC-52 is received by the IC subject to Section 130.105. Section 130.104(f). SIBs are calculated quarterly and paid monthly in the amount calculated under Section 130.102(g). Sections 408.144; 130.102(g). An IE who has met the following requirements upon the expiration of IIBs is entitled to SIBs:

  1. an IR of 15% or more;
  2. has demonstrated an active effort to obtain employment in accordance with Section 408.1415;
  3. has not elected to commute a portion of the IIBs under Section 408.128;
  4. has not returned to work or has returned to work earning less than 80% of the IE's AWW as a direct result of the IE's impairment;
  5. has completed and filed a DWC-52; and
  6. has not permanently lost entitlement to SIBs.

Sections 408.142; 130.102.

Determination of SIBs entitlement shall be made in accordance with the rules in effect on the date a qualifying period begins. APD 100296. This segment discusses the Act and Rules in effect as of July 1, 2009.

Good Faith.

Please note that the good faith requirement in previous Section 130.102(b)(2) only applied to those cases in which the qualifying period begins prior to July 1, 2009. As this segment focuses on the Act and Rules effective July 1, 2009, any cases cited within this section that refer to good faith are not cited to discuss that concept but to illustrate the proposition of the heading the case falls under.

Direct Result.

Among the requirements for SIBs entitlement is that the IE has earned less than 80% of his or her AWW as a direct result of the impairment from the compensable injury. Section 408.142; 130.102. An IE need not establish that the impairment is the only cause of the IE’s unemployment or underemployment during the qualifying period, but, rather, only that the impairment is a cause. The AP has held that the direct result requirement is sufficiently supported by evidence that an IE sustained a serious injury with lasting effects and could not reasonably perform the type of work being done at the time of the injury. APD 040603

Additionally, the AP noted in APD 982993:

When [an IE] has work restrictions imposed after a compensable injury, this, in effect, will narrow the field regarding the number and types of jobs available to that claimant. [An IE] who was injured at a sedentary job should not have a more difficult time proving direct result than [an IE] who sustained an injury while doing a heavy job. [Under these facts], the focus should not be solely on what type of job the [IE] had before or on whether the [IE] is physically able to perform that old job. Instead, one must consider (1) why was the [IE] unemployed [or underemployed] during the [qualifying] period and (2) did the impairment affect or impact the [IE’s] unemployment or underemployment situation.

Active Effort to Obtain Employment in Accordance with Section 408.1415.

To be eligible for SIBs an IE must provide evidence satisfactory to the Division of the following:

  1. active participation in a VRP conducted by DARS or a private vocational rehabilitation provider;
  2. active participation in work search efforts conducted through the TWC; or
  3. active work search efforts documented by job applications submitted by the recipient.

Section 408.1415.

Work Search Requirements.

An IE demonstrates an active effort to obtain employment by meeting at least one or any combination of the following during each week of the entire qualifying period:

  1. has returned to work in a position which is commensurate with the IE's ability to work;
  2. has actively participated in a VRP as defined in Section 130.101;
  3. has actively participated in work search efforts conducted through TWC;
  4. has performed active work search efforts documented by job applications; or
  5. has been unable to perform any type of work in any capacity. In this case the IE must provide a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and there must not be any other records showing that the IE is able to return to work.

Section 130.102(d)(1); APD 100429-s.

Note: Effective September 1, 2016, DARS was dissolved and its vocational rehabilitation services were transferred to TWC.

If the IE has not met at least one of the above-listed requirements in any week during his or her qualifying period, the IE is not entitled to SIBs unless the IE can demonstrate that he or she had reasonable grounds for failing to comply with the work search requirements. Section 130.102(d)(2).

Combining Any One or More of the Work Search Requirements in Section 130.102(d)(1)(A)-(E).

The IE argued entitlement to SIBs based on (1) returning to work in a position which is commensurate with her ability to work; (2) active participation in a VRP as defined in Section 130.101; and (3) performing active work search efforts documented by job applications every week of the qualifying period in dispute. The ALJ found the IE demonstrated an active effort to obtain employment each week during the entire qualifying period by (1) returning to work in a position commensurate with her ability to work; (2) by performing active work search efforts documented by job applications; and (3) by actively participating in a VRP as defined by Section 130.101. The AP noted that Section 130.102(d)(1) provides that an IE may combine the work search requirements listed in (d)(1)(A)-(E) of that section for each week of the qualifying period, and examined each theory of entitlement argued by the IE to determine whether the IE met the work search requirements for each week of the qualifying period. APD 100429-s.

Participation in a VRP.

 

Not Actively Participating in a VRP.

The IE argued entitlement to SIBs based on active participation in a VRP as defined in Section 130.101, among other theories. The ALJ found the IE demonstrated an active effort to obtain employment each week during the entire qualifying period by actively participating in a VRP as defined by Section 130.101, among other things. The AP found the evidence did not establish the IE complied with Section 130.102(d)(1)(B), active participation in a VRP, because her DARS letter did not indicate that she was making a reasonable effort to fulfill her obligations in accordance with the terms of a vocational rehabilitation plan or IPE; there was no vocational rehabilitation plan or IPE in evidence; and no other evidence the IE was actively participating in a VRP during the qualifying period in dispute. Because the AP held the evidence did not establish that the IE met any of the work search requirements in week 12 of the qualifying period, the AP reversed the ALJ's determination that the IE is entitled to SIBs for the disputed quarter. APD 100429-s.

The IE argued entitlement to SIBs based on active participation in a VRP. The employment goal in the IE's IPE was identified as a social service worker, and the IE's responsibilities in achieving this goal included, among other things, that the IE maintain 12 credit hours each semester. The IPE encompassed the entire qualifying period in question. During the qualifying period the IE was taking 12 credit hours; however, one of the classes ended three days after the start of the qualifying period. Although the IE listed job searches in excess of the minimum job search requirements in some of the weeks during the qualifying period, the IE failed to document any job searches for week 12 of the qualifying period. The ALJ found that the IE made a reasonable effort to fulfill her obligations in accordance with the terms of her IPE for the disputed quarter and therefore determined the IE was entitled to SIBs for the disputed quarter. The AP reversed the ALJ's determination and rendered a new decision that the IE was not entitled to SIBs for the disputed quarter. No other evidence was offered that the IE performed any other activity in connection with her IPE in week 12, and no evidence of any other active efforts during week 12 to meet the work search requirements of Section 130.102(d)(1) was offered. Section 130.102(d)(2) provides that an IE who has failed to meet at least one of the work search requirements in any week of the qualifying period is not entitled to SIBs unless the IE can demonstrate reasonable grounds for failing to comply with the work search requirements. The AP noted that although the ALJ did not make a specific written finding on reasonable grounds, the ALJ discussed the issue on the record and stated that in his opinion the IE did not present evidence of reasonable grounds for failing to search for work in week 12 if it is determined the IE had to perform an activity in week 12 since she was not attending classes or performing any other activity under the provisions of the IPE. There was sufficient evidence to support the ALJ's stated finding of no reasonable grounds for the IE's failure to comply with the work search requirements in week 12 of the qualifying period. APD 100615-s.

Return to Work in a Position Commensurate with the IE's Ability to Work.

 

IE Did Not Return to Work in a Position Commensurate with the IE's Ability to Work During Each Week of the Qualifying Period.

The IE argued entitlement to SIBs based on returning to work in a position which is commensurate with her ability to work, among other theories. The ALJ found the IE demonstrated an active effort to obtain employment each week during the entire qualifying period by returning to work in a position commensurate with her ability to work, among other things. The AP found the evidence supported the ALJ's finding that the IE complied with Section 130.102(d)(1)(A), return to work in a position commensurate with her ability to work, during the 3rd, 7th, and 10th weeks of the qualifying period. However, because the AP held the evidence did not establish that the IE met any of the work search requirements in week 12 of the qualifying period, the AP reversed the ALJ's determination that the IE is entitled to SIBs for the disputed quarter. APD 100429-s.

Total Inability to Work.

The ALJ determined that the IE failed to establish that he was entitled to SIBs based on the theory of total inability to work. The IE submitted letters from two different doctors to serve as narrative reports to explain how the compensable injury caused a total inability to work; however, the ALJ stated that the IE failed to provide a single narrative report which explained how the injury caused a total inability to work during the qualifying period. The AP noted, citing APD 170210, among other cases, that it has held that reports from different doctors cannot be read together to create a narrative report, but that the report must come from one doctor. It went on to cite APD 002724 for the proposition that the following will be considered in determining whether the requirements under Rule 130.102(d)(1)(E) for a doctor’s narrative report are met: amendments; supplements, including CCH testimony from the doctor; information incorporated in the report by reference; or information from a doctor’s medical records in evidence that can be reasonably incorporated by inference based on some connection between the report and the information in the medical records, will be considered. Rule 130.102(d)(1)(E) does not require a single narrative report to establish a total inability to work. The AP held that the ALJ applied the incorrect standard in requiring a single narrative report and reversed the ALJ’s determination. APD 172482.

IE Did Not Have a Total Inability to Work.

The IE argued entitlement to SIBs based on a total inability work. The ALJ found that the IE provided a narrative report from a doctor specifically explaining how the injury caused a total inability to work during the qualifying period in question, and that no other records show that the IE was able to return to work during the qualifying period. The AP noted the report relied upon by the IE stated "[a]t the time of this letter, [the IE] only qualifies for sedentary work therefore re-training thru [DARS] is recommended." The AP found this report does not constitute a narrative report that explains how the compensable injury caused a total inability to work in any capacity given that the doctor opined that the IE can work sedentary duty, and therefore the report did not constitute a narrative that specifically explains how the injury causes a total inability to work pursuant to Section 130.102(d)(1)(E). There were no other records in evidence constituting the narrative report under Section 130.102(d)(1)(E). The AP reversed the ALJ's determination and held the IE is not entitled to SIBs for the disputed quarter. APD 100267.

Work Search Efforts.

An IE shall provide documentation sufficient to establish that the IE has, during each week of the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the TWC required for unemployment compensation in the IE's county of residence pursuant to the TWC Local Workforce Development Board requirements. If the IE's required number of contacts changes during a qualifying period the lesser number of contacts is required for that period. If the IE resides outside of Texas the minimum number of required contacts will be the number required by the public employment service in accordance with applicable unemployment compensation laws for the IE's place of residence. Section 130.102(f). The IC is required to accurately complete the blanks on the DWC-52 which provide the number of the applicable quarter, the dates of the qualifying period, the dates of the quarter, the number of required job searches per week of the qualifying period, and the deadline for filing the application with the IC before providing that form to the IE. Section 130.104(b).

IC provided inaccurate information on the DWC-52.

The ALJ determined that the IE was not entitled to fourth and fifth quarter SIBs because the IE failed to make the minimum required work searches during the qualifying periods. The AP noted that neither the fourth nor fifth quarter DWC-52s in evidence provided the minimum number of work search efforts required by Rule 130.102(d)(1) and (f). The IE testified that the IC never told her that she needed to apply for five jobs in each week of the qualifying period rather than three. The IE was paid SIBs for the second and third quarters even though she only conducted three job searches per week rather than the five required for her county of residence. The AP cited APD 010617-s for the proposition that as a prerequisite for advancing the argument that the IE failed to document a weekly job search in accordance with Rule 130.102(e), the IC is first required to comply with its obligation to accurately provide the information required in Rule 130.104(b) on the DWC-52. The AP held that as neither the fourth nor fifth quarter SIBs applications reflected that the requisite number of job searches was provided by the IC as required by Rule 130.104(b), the ALJ’s determination of non-entitlement was reversed. APD 140039.

The ALJ determined that the IE was not entitled to sixth quarter SIBs because the IE failed to make the minimum required work searches during the qualifying period. The evidence reflected that the IE performed six job searches per week during the qualifying period. The parties stipulated that the number of weekly work search efforts for the county the IE resides in changed from five to seven before the beginning of the qualifying period and that the IE was not informed of the change by the IC until a month into the qualifying period. The AP also noted that Rule 130.102(f) provides, in part, that if the required minimum number of work search contacts changes during a qualifying period, the lesser number of work search contacts shall be the required minimum number of contacts for that period. The rules do not contemplate having two different numbers of minimum weekly work search contacts during the same qualifying period. As the IC failed to inform the IE of the accurate number of required work searches prior to the beginning of the qualifying period, the AP reversed the ALJ’s determination that the IE was not entitled to sixth quarter SIBs. APD 172459.

IE Did Not Meet Work Search Efforts Requirement.

The IE argued entitlement to SIBs based on performing active work search efforts documented by job applications every week of the qualifying period in dispute, among other theories. The minimum number of work searches for the IE's county of residence was 3 per week. The IE's DWC-52 listed that the IE made a minimum of 3 work searches for the 1st through the 11th and the 13th weeks of the qualifying period. However, for the 12th week the IE documented only 2 work searches. Attached to the DWC-52 was a detailed job search listing that documented each of the IW's searches, although there was no documentation for a third work search in week 12. The AP stated that the IE did not provide documentation sufficient to establish she had during each week of the qualifying period made the minimum number of job applications and or work search contacts consistent with the work search contacts established by TWC which are required for unemployment compensation in the IE's county of residence. There was no evidence the minimum number of work searches during the qualifying period changed from the required minimum of three. The AP held that portion of the ALJ's finding that the IE demonstrated an active effort to obtain employment each week during the qualifying period by performing active work search efforts documented by job applications is against the great weight and preponderance of the evidence. Because the AP found the evidence did not establish that the IE met any of the work search requirements in week 12 of the qualifying period, the AP reversed the ALJ's determination that the IE was entitled to SIBs and rendered a new decision that the IE was not entitled to SIBs for the disputed quarter. APD 100429-s.

Commutation of IIBs.

Although an IW may elect to commute the remainder of his or her IIBs (dependent upon the IW returning to work for at least three months and earning at least 80% of his or her AWW), an IW who elects to do this is not entitled to any additional benefits for the compensable injury. Section 408.128; APD 042062.

Determination of Entitlement or Non-entitlement.

 

First Quarter.

The Division will make the determination of entitlement or non-entitlement for an eligible IW's first quarter of SIBs. Section 130.103. If the Division determines that the IW is entitled to SIBs for the first quarter, the Division will send a notice of determination to the IW which includes all of the information listed in Section 130.103(b). If the Division determines that the IW is not entitled to SIBs for the first quarter, the Division will send a notice to the IW which includes all of the information listed in Section 130.103(c).

Subsequent Quarters.

After the Division has made the determination of entitlement or non-entitlement for SIBs for the first quarter, the IC shall make determinations for subsequent quarters consistent with the provisions contained in Section 130.102. The IC shall issue a determination of entitlement or non-entitlement within 10 days after receipt of the DWC-52. Section 130.104.

IC's Duty to Send DWC-52 to IW.

Under Section 130.104(b), the IC is required to send the IW a DWC-52 for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW a DWC-52 arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. APD 050280.

Direct Result.

An IW has earned less than 80% of his or her AWW as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings. Section 130.102(c). A finding of direct result is sufficiently supported by evidence that the IW sustained a serious injury with lasting effects and that the IW could not reasonably perform the type of work that he or she was doing at the time of the injury. Determination of direct result is normally a question for fact for the HO to resolve. APD 061132.

However, if an IW is not entitled to SIBs at the time of payment of final IIBs because the IW is earning at least 80% of his or her AWW, the IW may become entitled to SIBs at any time within one year after the date the IIBs period ends if:

  1. the IW earns wages for at least 90 days and the wages are less than 80% of the IW's AWW;
  2. the IW has an IR of 15% or greater, has not elected to commute a portion of the IIBs benefit under Section 408.128; and has demonstrated an active effort to obtain employment in accordance with Section 408.1415; and
  3. the decrease in the IW's earnings is a direct result of the IW's impairment from the compensable injury.

Section 408.142

Filing the DWC-52.

Section 130.101(1) describes the form and information required for an application for SIBs, form DWC-52. Section 130.104(c) describes the manner in which an IW is to file a DWC-52. The IW shall file the DWC-52 no later than seven days before and no earlier than 20 days before the beginning of the quarter for which the IW is applying for SIBs. The IC is to return any DWC-52 received more than 20 days before the beginning of the quarter. Section 130.104.

Untimely Filing DWC-52.

An IW who fails to timely file a DWC-52 with the IC shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the IC, unless one of the following applies:

  1. the IC failed to timely mail the form to the IW as provided by Section 130.104;
  2. the Division failed to issue a determination of entitlement or non-entitlement for the first quarter and the quarter applied for immediately follows the first quarter; or
  3. a finding of an IR of 15% or greater in an administrative or judicial proceeding when the previous IR was less than 15%.

Section 130.105.

IW Failed to Timely File DWC-52. On November 13, 2003, the Division sent the IW a notice of nonentitlement for the first quarter of SIBs. The IW testified at the CCH that the IC did not send him any application for SIBs. The IW filed his DWC-52 for the second, third, and fourth quarters of SIBs on September 9, 2004. The HO found that the IC failed to mail the IW an application for SIBs prior to September 9, 2004, and determined that the IC was not relieved of liability due to the IW's failure to timely file a DWC-52 because the IC failed to provide copies of the DWC-52 in accordance with Division rules. The AP reversed the HO, noting that under Section 130.104(b), the IC is required to send the IW an application for SIBs for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW an application for SIBs arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. Because the Division determined the IW was not entitled to SIBs for the first quarter, the IW had to apply for a subsequent quarter of SIBs in order for the IC to be required to send an application to the IW under Section 130.104(b). The AP further noted that the exceptions under Section 130.105(a) do not apply to the facts of this case. The AP therefore reversed the HO and determined that the IC was relieved of liability for the payment of SIBs for the second and third quarter, and for that portion of the fourth quarter between July 10, 2004, and September 9, 2004. APD 050280.

IC Contesting IW's Entitlement or Amount of SIBs.

 

First Quarter.

An IC wishing to dispute a Division finding of entitlement to or amount of SIBs for the first quarter shall request a BRC within 10 days after receiving the Division determination of entitlement. An IC waives the right to contest the Division determination of entitlement to or amount of SIBs for the first quarter if the request is not received by the Division within 10 days after the date the IC received the determination. Section 130.108(b).

Subsequent Quarter with Prior Payment.

If an IC disputes entitlement to a subsequent quarter and the IC has paid SIBs during the quarter immediately preceding the quarter for which the DWC-52 is filed, the IC shall dispute entitlement to the subsequent quarter by requesting a BRC within 10 days after receiving the DWC-52. An IC waives the right to contest the entitlement to SIBs for the subsequent quarter if the request is not received by the Division within 10 days after the date the IC received the DWC-52. The IC does not waive the right to contest entitlement to SIBs if the IC has returned the IW's DWC-52 pursuant to Section 130.104(c).

Subsequent Quarter without Prior Payment.

If an IC disputes entitlement to a subsequent quarter and the IC did not pay SIBs during the quarter immediately preceding the quarter for which the application is filed, the IC shall send the determination to the injured employee within 10 days of the date the form was filed with the IC and include the reasons for the IC's finding of non-entitlement and instructions about the procedures for contesting the IC's determination as provided by Section 130.108(a). Section 130.108(d).

IC Liability.

An IC who unsuccessfully contests a Division determination of entitlement to SIBs is liable for:

  1. All accrued, unpaid SIBs, and interest on that amount, and;
  2. Reasonable and necessary attorney's fees incurred by the IW as a result of the IC's dispute which have been ordered by the Division or court.

Section 130.108(e).

Immediately Preceding Quarter is Actively Under Dispute.

Where entitlement to the immediately prior quarter of SIBs is actively under dispute and ongoing at the time the IC receives the IW's DWC-52 for the subsequent quarter, the IC must timely request a BRC if it wishes to dispute the subsequent quarter; failure to do so results in IC waiver as provided in Section 408.147(b). APD 032868-s (please note this case refers to a previous version of Section 130.108).

Immediately Preceding Quarter is Not Actively Under Dispute.

Where an IW's determination of nonentitlement to the immediately prior quarter of SIBs is not actively under dispute or ongoing at the time the IC receives the IW's DWC-52 for the subsequent quarter, the IC is not required to request a BRC. APD 051130-s (please note this case refers to a previous version of Section 130.108).

Permanent Loss of Entitlement to SIBs (I40).

An IW who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. Sections 408.146(c); 130.106(a); APD 041231-s. However, an IW who has lost entitlement to SIBs under Sections 408.146(c) and 130.106(a) will become re-entitled to SIBs if the IW Is discharged from employment within 12 months of losing entitlement and the employer discharged the IW with intent to deprive the IW of SIBs. Section 130.109. An IW permanently loses entitlement to SIBs upon the expiration of the 401-week period calculated pursuant to Section 408.083. Section 130.106(b).

SIBs/Timely Filing of SIBs Application (I41) [Cross reference: SIBs (I31)]

Filing the DWC-52.

Section 130.101(1) describes the form and information required for an application for SIBs, form DWC-52 . Section 130.104(c) describes the manner in which an IW is to file a DWC-52. The IW shall file the DWC-52 no later than seven days before and no earlier than 20 days before the beginning of the quarter for which the IW is applying for SIBs. The IC is to return any DWC-52 received more than 20 days before the beginning of the quarter. Section 130.104.

Untimely Filing DWC-52.

An IW who fails to timely file a DWC-52 with the IC shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the IC, unless one of the following applies:

1. the IC failed to timely mail the form to the IW as provided by Section 130.104;
2. the Division failed to issue a determination of entitlement or non-entitlement for the first quarter and the quarter applied for immediately follows the first quarter; or
3. a finding of an IR of 15% or greater in an administrative or judicial proceeding when the previous IR was less than 15%.

Section 130.105 .

IW Failed to Timely File DWC-52.

On November 13, 2003, the Division sent the IW a notice of nonentitlement for the first quarter of SIBs. The IW testified at the CCH that the IC did not send him any application for SIBs. The IW filed his DWC-52 for the second, third, and fourth quarters of SIBs on September 9, 2004. The HO found that the IC failed to mail the IW an application for SIBs prior to September 9, 2004, and determined that the IC was not relieved of liability due to the IW's failure to timely file a DWC-52 because the IC failed to provide copies of the DWC-52 in accordance with Division rules. The AP reversed the HO, noting that under Section 130.104(b), the IC is required to send the IW an application for SIBs for a subsequent quarter with either the first payment for a quarter of SIBs or a determination of nonentitlement for any quarter of SIBs. The duty of an IC to send the IW an application for SIBs arises only with either the first payment of SIBs or a determination of nonentitlement for any quarter. Because the Division determined the IW was not entitled to SIBs for the first quarter, the IW had to apply for a subsequent quarter of SIBs in order for the IC to be required to send an application to the IW under Section 130.104(b). The AP further noted that the exceptions under Section 130.105(a) do not apply to the facts of this case. The AP therefore reversed the HO and determined that the IC was relieved of liability for the payment of SIBs for the second and third quarter, and for that portion of the fourth quarter between July 10, 2004, and September 9, 2004. APD 050280.

SIBs/Carrier Timely Dispute (I42).

[Cross reference: SIBs (I31)]

IC Contesting IW's Entitlement or Amount of SIBs.

 

First Quarter.

An IC wishing to dispute a Division finding of entitlement to or amount of SIBs for the first quarter shall request a BRC within 10 days after receiving the Division determination of entitlement. An IC waives the right to contest the Division determination of entitlement to or amount of SIBs for the first quarter if the request is not received by the Division within 10 days after the date the IC received the determination. Section 130.108(b).

Subsequent Quarter with Prior Payment.

If an IC disputes entitlement to a subsequent quarter and the IC has paid SIBs during the quarter immediately preceding the quarter for which the DWC-52 is filed, the IC shall dispute entitlement to the subsequent quarter by requesting a BRC within 10 days after receiving the DWC-52. An IC waives the right to contest the entitlement to SIBs for the subsequent quarter if the request is not received by the Division within 10 days after the date the IC received the DWC-52. The IC does not waive the right to contest entitlement to SIBs if the IC has returned the IW's DWC-52 pursuant to Section 130.104(c).

Subsequent Quarter without Prior Payment.

If an IC disputes entitlement to a subsequent quarter and the IC did not pay SIBs during the quarter immediately preceding the quarter for which the application is filed, the IC shall send the determination to the injured employee within 10 days of the date the form was filed with the IC and include the reasons for the IC's finding of non-entitlement and instructions about the procedures for contesting the IC's determination as provided by Section 130.108(a). Section 130.108(d).

IC Liability.

An IC who unsuccessfully contests a Division determination of entitlement to SIBs is liable for:

  1. All accrued, unpaid SIBs, and interest on that amount, and;
  2. Reasonable and necessary attorney's fees incurred by the IW as a result of the IC's dispute which have been ordered by the Division or court.

Section 130.108(e) .

Immediately Preceding Quarter is Actively Under Dispute.

Where entitlement to the immediately prior quarter of SIBs is actively under dispute and ongoing at the time the IC receives the IW's DWC-52 for the subsequent quarter, the IC must timely request a BRC if it wishes to dispute the subsequent quarter; failure to do so results in IC waiver as provided in Section 408.147(b). APD 032868-s (please note this case refers to a previous version of Section 130.108).

Immediately Preceding Quarter is Not Actively Under Dispute.

Where an IW's determination of nonentitlement to the immediately prior quarter of SIBs is not actively under dispute or ongoing at the time the IC receives the IW's DWC-52 for the subsequent quarter, the IC is not required to request a BRC. APD 051130-s (please note this case refers to a previous version of Section 130.108).

Improper Denial/Approval of a Designated Doctor Appointment (I53)

Abuse of Discretion/Subsequent DD.

An abuse of discretion occurs when an action is taken without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The AP has applied an abuse-of-discretion standard to the appointment of a subsequent DD. APD 030467.

28 Texas Administrative Code (TAC) Sec. 127.5(d), effective December 6, 2018, provides as follows:

Except as provided in subsection (h) of this section, the division shall select the next available doctor on the DD list for a medical examination requested under 28 TAC Sec. 127.1 (relating to Requesting DD Examinations). A DD is available to perform an examination at any address the doctor has filed with the division if the doctor:

(1) does not have any disqualifying associations as described in 28 TAC Sec. 127.140 (relating to Disqualifying Associations);

(2) is appropriately qualified to perform the examination in accordance with 28 TAC Sec. 127.130 (relating to Qualification Standards for DD Examinations);

(3) is a certified DD on the day the examination is offered and has not failed to timely file for recertification under 28 TAC Sec. 127.110 (relating to DD Recertification), if applicable; and

(4) has not treated or examined the IE in a non-DD capacity within the past 12 months and has not examined or treated the IE in a non-DD capacity with regard to a medical condition being evaluated in the DD examination.

28 TAC Sec. 127.5(h), also effective on December 6, 2018, provides as follows: 

If the division has previously assigned a DD to the claim at the time a request is made, the division shall reassign that doctor again unless the division has authorized or required the doctor to stop providing services on the claim in accordance with 28 TAC Sec. 127.130. Examinations under this subsection must be conducted at the same examination address as the DD’s previous examination of the IE or at another examination address approved by the division.

Burden of Proof on the Party Challenging the Order.

The ALJ found that a second DD was improperly appointed. The ALJ correctly placed the burden of proof on the IC, which was the party challenging the division's order appointing the second DD; however, the ALJ found that the division abused its discretion in the appointment of the second DD. The AP reversed the ALJ's determination that the second DD was improperly appointed and rendered a decision that based on the evidence, the second DD was properly appointed. In this case, the only evidence regarding why a second DD was appointed is a dispute resolution information system (DRIS) note reflecting that the IE would have to be sent to a different DD because the initial DD could not meet the time frame for setting up a DD appointment. Therefore, there was no showing by the IC that the division abused its discretion in appointing the second DD. The AP stated that an order of an administrative body is presumed to be valid and that the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action, citing Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref'd). APD 042669-s.

The ALJ found that the second DD was improperly appointed. The ALJ incorrectly placed the burden of proof on the IC and found that it was not established by the IC that the first DD was unable or unwilling to continue as DD. However, the IE was the party challenging the appointment of the second DD, therefore the IE had the burden to establish that the second DD was not properly appointed. Because the ALJ incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the ALJ to apply the correct burden of proof in considering the evidence presented at the hearing. APD 042979.

Disqualifying Association Preventing a Doctor from Serving as a DD.

A disqualifying association is any association that may reasonably be perceived as having potential to influence the conduct or decision of a DD. 28 TAC Sec. 127.140(a). A non-exhaustive list of disqualifying associations is found at 28 TAC Sec. 127.140(a)(1)-(7).

For examinations after January 1, 2013, a DD has a disqualifying association on a claim or examination if his or her agent has a disqualifying association relevant to the claim. 28 TAC Sec. 127.140(b).

The AP has determined the following to be disqualifying associations that would prevent the doctor from serving as the DD:

A doctor serving as either an IC peer review doctor or IC RME doctor and also serving as a referral doctor of the DD for the IE in the same claim. APD 100842.

Performing a DD exam in a facility of the IE's employer. APD 101194.

The sharing of common office facilities and phone and fax numbers with a doctor with a disqualifying association. APD 101194.

The sharing of the same address, the same suite number, and the same telephone and fax numbers by the DD and the IC's RME doctor. APD 091660.

The sharing of the same address, the same suite number, and same telephone and fax numbers by the DD and the peer review doctor. APD 091210.

NOTE: APDs 100842, 101194, 091660, and 091210 above, were decided under 28 TAC Secs. 126.7(h)(2) and 180.21, which were in effect at the applicable time but have since been repealed.

Frequency of DD Examination.

Section 408.0041(b) and 28 TAC Sec. 127.1(c) provide, in part, that a DD examination may not be conducted more frequently than every 60 days, unless good cause for more frequent examinations exists.  Section 408.0041 and 28 TAC Sec. 127.1(c) both specifically discuss the date of the actual DD examination rather than the date the request for a DD examination is made.   The AP held that the controlling date in the question of whether a requested DD examination occurs within 60 days of a previous DD examination is the date of the actual subsequent examination rather than the date the request is made.  APD 160697-s.

Qualification Standards for DD Examinations for DD Assignments

In accordance with 28 TAC Sec. 127.130, a DD is qualified to perform a DD examination on an IE if the DD meets the appropriate qualification criteria for the area of the body affected by the injury and the IE’s diagnosis and has no disqualifying associations under 28 TAC Sec. 127.140. Qualification standards for DDs were updated and clarified in the version of 28 TAC Sec. 127.130 effective on December 6, 2018.

DD Found Not Qualified.

The IE sustained a compensable injury when she tripped and fell.  The IE asserted that her compensable injury extended to disc herniations with nerve root irritation and cauda equina-like syndrome.  In response to a DWC-32 filed by the IE for a DD to address MMI, IR , and extent of injury on the claim, the division appointed a doctor of chiropractic as DD. Since that DD was not qualified to examine spinal cord injuries under 28 TAC Sec. 127.130(b)(8)(B), the AP reversed and remanded the case back to the ALJ so that the parties could receive the benefit of an impartial examination by a qualified DD as contemplated by Secs. 408.0041 and 408.0043 and 28 TAC Sec. 127.130(b)(8)(B)APD 170849.

NOTE: APD 170849 was decided under the version of 28 TAC Sec. 127.130 that was in effect from September 1, 2012, through December 5, 2018.

Other Income Benefits (I00)

Section 408.103(a) provides, in part, that subject to Sections 408.061 and 408.062 (the maximum and minimum TIBs rates, respectively), the amount of a temporary income benefit is equal to 70% of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s AWW, or for the first 26 weeks, 75% of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s AWW if the employee earns less than $10 an hour. 28 TAC Sec. 129.3(d) provides that the IC shall calculate the employee’s lost wages by subtracting the PIE from the AWW. 28 TAC Sec. 129.4(a) provides that the IC shall adjust the weekly amount of TIBs paid to the IE as necessary to match the fluctuations in the employee’s weekly earnings after the injury.

Impact on PIE Value for Partial TIBs Based on Reduction in Work Hours for Reasons Unrelated to Compensable Injury.

Among the issues in the CCH was the IE’s entitlement to partial TIBs during a post-injury period in which she worked for the employer in a light-duty status. The ALJ found the IE was entitled to partial TIBs in the amount requested by the IE, which was based on the value for PIE for each week on the number of hours she worked. IC contended that the value for PIE each week should have been based on the wages offered to the IE for the light-duty position since there was evidence presented that the IE missed time for reasons not related to the compensable injury. That evidence included a request from the IE to the employer to reduce her hours so that her income would not impact her receipt of Social Security disability benefits for a condition unrelated to the compensable injury. The AP reversed the ALJ’s decision since the ALJ made no findings of fact on the evidence presented regarding the IE’s earnings based on reduced hours for reasons unrelated to the compensable injury, which impacts the amount of partial TIBs to which the IE is entitled. APD 172600.

 

For more information, contact: apdmanual@tdi.texas.gov