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Tuesday, September 22, 2009
Maximum Medical Improvement and Exam Requirement
The Division of Workers' Compensation is now enforcing it's interpretation of
the rules requiring a physical examination prior to any certification of maximum medical improvement (MMI).
In the past, a claimant would have been examined by a designated doctor (DD) and may have been found to be at MMI.
After additional treatment, the claimant would then ask the DWC to contact the DD with a letter of clarification and ask the
DD to review the new medical records to see if that treatment affected the determination of MMI. If the DD changed the
date of MMI, then the claimant could pursue additional benefits that could be owed.
Now, if the DD reviews the
new medical records and changes the MMI date, the DWC will determine that the change in MMI was not valid. If the case
has not been set up properly, there won't be an alternative rating from another doctor. If the only impairment ratings
in evidence are the DD's original certification and then the amended certification that is now determined to be invalid, then
the claimant is stuck with the original impairment rating and MMI date with no further recourse. This would be a tragedy,
but is fairly common when the claimant is represented by a non-lawyer ombudsman.
The proper way for this situation
to be handled is to recognize the invalidity before pursuing MMI ina contested case hearing. The claimant should ask
to have the DD re-examine the claimant if the DD thinks the new medical records could affect the prior determination that
the claimant was at MMI. Then, any changes would be based on a physical exam in addition to the new medical records,
and it would be valid and would be given presumptive weight.
This is another example of the huge traps that
lurk in the Texas workers' compensation system. If you don't know the smallest details of the law, you could find yourself
losing out on a lot of benefits to which you should be entitled. For example, an impairment rating case is
like no other in the system. If you go to a contested case hearing on this issue and either party appeals the decision
into the Texas courts, the parties are limited to the evidence that was presented to the Division. That is not the case
with any other issue that is litigated at the DWC. And if you had been at the CCH with the amended MMI certification
that was based only on the DD's review of new medical records...you can now see how huge a mistake that could be. It
could cost you everything.
11:07 pm cdt
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