Texas Appeals Panel Update
A few Appeals Panel cases of interest in the past couple of months include:
APD 161628 (decided 10/4/16) - the Appeals Panel analyzed finality in the context of Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the impairment rating prior to the expiration of the 1st quarter of SIBs, the date of MMI and IR shall be binding and final. In that case, the first certification was rendered on 9/11/13. A designated doctor was requested on 10/6/13. On 10/18/13, a designated doctor was appointed, and saw the claimant on 11/7/13. The designated doctor certified MMI on 9/4/13 with a 15% impairment rating. Claimant subsequently applied for SIBs for the 2nd, 3rd and 4th quarters. The Appeals Panel clarified that it is Rule 130.102(h) that controlled in this case, not Rule 130.12 (which the hearing officer cited). The Appeals Panel explained that the preamble to the relevant portion of Rule 130.102 makes it clear that the finality provisions of that rule do not apply to any situation where a party has raised a dispute prior to the first quarter of SIBs, and the appointment of a designated doctor does not resolve a dispute of the MMI certification or assigned impairment rating.
APD 161503 (decided 11/7/16) - the hearing officer erred in holding the first certification of MMI/IR was not final based on compelling evidence of a previously undiagnosed condition. A flight attendant injured her left wrist, hand and forearm when she was flung around the cabin during an episode of turbulence. She was diagnosed with left wrist and hand contusions and ulnar radicular pain. A left wrist sprain was accepted by the Carrier. Her treating doctor determined that she reached MMI with no permanent impairment. The hearing officer determined that the injury also included left ulnar nerve entrapment, and the Appeals Panel agreed. The Appeals Panel disagreed, however, the left ulnar nerve entrapment was a previously undiagnosed medication condition that justified an exception to the finality rule. The Appeals Panel cited evidence that the claimant was diagnosed with early with ulnar nerve radicular pain, and the treating doctor who rendered the first certification had continuously diagnosed her with a left ulnar injury. Reversed and rendered on the issues of finality and MMI/IR.
Expert Medical Evidence Required - Causation
APD 161780 (decided 10/18/16) - the Appeals Panel reversed a hearing officer decision that the compensable injury included lumbar radiculitis where there were no medical records that explained how the injury caused that condition, and requiring expert medical evidence to prove causation of lumbar radiculitis.
Treatment After MMI Can’t Be Considered in Impairment Rating
APD 161877 (decided 11/2/16) - the hearing officer erred in adopting the designated doctor’s certification of MMI/IR as the designated doctor included a rating for a surgical procedure that occurred after the statutory date of MMI, which was determined to be the proper MMI date by the Appeals Panel.
Course and Scope - Deviation from Employment
APD 161985 (decided 11/7/16) - the hearing officer erred in holding the claimant was not in the course and scope of his employment when he was involved in a motor vehicle accident. The claimant was driving to Discount Tire to repair the tires on his personal truck in preparation for a 10-hour drive to a location at the direction of his employer. Claimant was paid $30.00 per day for the use of his truck and it was company policy to reimburse foremen and operators for use of their personal vehicles. Claimant was reimbursed each months regardless of whether or not the truck needed maintenance. The employer directed claimant to choose a crew to travel with him to Baytown for a safety meeting. ON the date of injury he was driving to get his tires repaired before traveling to Baytown.
- Contributed by the Texas NWCDN Member