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Advisory 2002-04

Status on Fulton Decision

On April 12, 2001, the 3 rd Court of Appeals in Austin issues a decision in the case of Fulton v. Associated Indemnity Corporation, Cause No. 03-00-00449CV. That Court said: "We declare Rule 130.5(e) invalid to the extent it prevents a reassessment of MMI ('maximum medical improvement') certification because the impairment rating or MMI was not disputed within ninety days." The Court was considering the Commission's rule at 28 TEX. ADMIN. CODE section 130.5(e). Although Rule 130.5(e) was amended, effective March 13, 2000, the amended rule contained a similar 90-day provision. Subsequently, the Commission repealed the 90-day provision of the amended rule effective January 2, 2002.

On January 31, 2002, the Texas Supreme Court denied the petition for review in this case. The Commission has been advised that no motion for rehearing was filed with the Texas Supreme Court. As a result, the decision of the 3 rd Court of Appeals will become final.

After consultation with the Office of the Attorney General, the Commission understands that the 90-day provision, as it existed in the previous versions of Rule 130.5(e), cannot be utilized as a basis for asserting the finality of a MMI certification or an impairment rating made before the statutory MMI defined periods as specified in Texas Labor Code section 401.011(30).

Any dispute of certification of MMI or an impairment rating that became final as a result of 90-day provisions of the previous versions of Rule 130.5(e), will be handled on a case-by-case basis through the Commission's dispute resolution process specified in the Commission's rules in 28 TEX. ADMIN. CODE Chapters 140 through 144.

The relevant provisions of the Texas Workers' Compensation Act and the Commission's current rules are included in the Commission website at The Commission's Advisory 2001-05 is no longer in effect and is superseded by this Advisory.

Signed this 4 th day of March, 2002

Richard F. Reynolds, Executive Director

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