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Advisory 92-05B

Withdrawal of TWCC Advisory 92-05

TWCC Advisory 92-05, Maximum Medical Improvement/Termination of Benefits, issued on August 12, 1992, is today withdrawn, in light of a recently filed decision of the Commission's Appeals Panel on the same subject.

The Appeals Panel, in Decision No. 92374, filed on August 28, 1992, held that "certification by a non-treating doctor of maximum medical improvement [MMI], alone, does not constitute a basis for the carrier to stop temporary income benefits [TIBs]." This holding is based on the finding that the carrier's doctor's certification of MMI "did not meet the requirements of Article 8308-4.23(b) which says that an employee must have ' reached MMI' (emphasis added) in order for TIBs to be stopped."

The Appeals Panel provided additional discussion to support this conclusion:

A determination that TIBs cannot be suspended solely by a certification of MMI by a doctor requested by the carrier is consistent with applicable articles of the 1989 Act. Article 8308-4.16(e) states that TIBs cannot be suspended without a BRC when a doctor selected by a carrier says that an employee can return to work. Article 8308-4.25(b) provides that when there is dispute as to when MMI has been reached, a designated doctor is appointed. The article does not give even the designated doctor power to determine MMI, but says the designated doctor will report to the Commission who will decide. (It would appear illogical to allow a doctor, requested by the carrier, to solely determine when TIBs should be stopped when a doctor designated by the Commission cannot make such a decision). While it may be argued that a suspension of TIBs upon certification of a doctor requested by the carrier is not necessarily a final action such as is a determination concerning a designated doctor's report under Article 8308-4.25, Article 8308-4.23(b) provides no inroad to the concept that TIBs continue until MMI is reached. No provision is made for even temporary unilateral action by the carrier in regard to MMI as a means to stop TIBs.

Again, when a claimant does not agree with a certification of MMI, Article 8308-4.25(b) controls by saying, "[i]f a dispute exists as to whether the employee has reached maximum medical improvement, the commission shall direct ... a designated doctor" (emphasis added), which makes it implicit that MMI has not been reached solely by a certification from a physician other than the treating doctor.

If the carrier, based on a certification from a doctor requested by the carrier could dictate, solely, when TIBs stopped, the certification of MMI in question would have to be equated to "reached MMI" as found in Article 8308-4.23(b) and 4.25(b)-in addition, there would be no need for that certifying doctor to seek approval of his decision from any other doctor, but Texas W.C. Comm'n, 28 TEXAS ADMIN. CODE Section 130.3 (Rule 130.3) requires that any certification of MMI by other than a treating doctor be provided to the treating doctor for his agreement or disagreement.

We consider certification of MMI by any doctor to be a serious matter which should call for expedited treatment within the Commission to see that relevant rules and procedures are followed to determine whether MMI has been reached.

Signed this 3 rd day of November, 1992.

Todd K. Brown
Acting Executive Director


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