In my last post I discussed the importance of knowing the Division Rules that affect impairment ratings (or at least knowing someone else that knows the Rules). They often make the difference in your case.  This time, let me illustrate the importance of knowing the AMA Guides To The Evaluation of Permanent Impairment, 4th Edition, the book that Texas workers' compensation law requires that we use to assign an impairment rating.

The AMA Guides have chapter after chapter about how to give an impairment rating for each body part and various diagnoses. The small print matters too. One of the interesting things about impairment ratings is how different body parts are rated and then added together. There is a table at the back of the book that we use to add up impairments, and 1+1 does not always equal 2.

Sometimes, though, 1+1 does equal 2 but the doctor just adds it up wrong. That happened to a man that came to see me last week. The designated doctor had given him a 14% impairment rating. This is potentially a big deal because, in Texas, if you get a 15% rating then you are eligible for additional monetary benefits called supplemental income benefits.  So he decided to have the 14% impairment rating checked out.

When I reviewed the impairment rating, it was obviously wrong. When the doctor added up the impairment ratings for each area of the body, he just added wrong. I plugged everything into the chart to add it up and it actually came out to 19%! 

This man had been shorted by a simple mistake. But the error was potentially disastrous. An injury resulting in a 14% impairment rating is limited to a maximum of only 182 weeks of benefits. But any injury with a rating over that is eligible for up to 401 weeks of benefits. By correcting this error we could potentially double this man's recovery!

I doubt the insurance company would have told this injured worker about the error of the designated doctor.  And I know that the Division does not review these ratings for accuracy and correct them. He would have just been one of those folks that got screwed by the system without ever knowing it.

Don't be the person that gets screwed by the system without ever knowing it. Get your entire claim reviewed by someone who knows what to look for.

Once you complete your treatment for a workers' compensation injury in Texas, you should get an impairment rating. This is a measurement of the permanent damage to your body resulting from your injury. Texas workers' compensation law requires that we use the AMA Guides To The Evaluation of Permanent Impairment, 4th Edition, to assign impairment ratings.

One of the problems with impairment ratings is that sometimes there is a lot of leeway, or different methods that can be used so that doctors might assign different impairment ratings for the same injury. For instance, a designated doctor and an insurance company doctor might both examine you and give you a different rating. This happened to one of my clients last week. The designated doctor assigned a 50% impairment rating and the insurance company doctor gave an 11% impairment rating. Then we ended up in litigation.

You can always present both impairment ratings to the judge and argue about which one is most accurate. In this case, though, I realized that we could win on a technicality. You must always look for these technicalities. The Texas Labor Code and the Division Rules are full of them. But not everybody knows about them.

When going through the records exchanged by the insurance company prior to our hearing, I discovered that at the beginning of the claim the adjuster had requested that my client see Dr. 1 for the insurance company.  Now at the end of the claim they got the DWC to approve an exam by Dr. 2. So I looked at the request the adjuster filed to have my client examined by Dr. 2 and realized that she didn't tell the DWC that the carrier had already assigned Dr. 1 to the claim. They can't do this!

Division Rules 126.5 and 126.6 require that the adjuster use the same doctor for the second exam that was used in the first exam unless the DWC approves the decision to change doctors. This adjuster lied to the DWC when she filed a form saying there was not a doctor already approved for the insurance company to use. She changed doctors for the exam without approval.

The great news is that the Rules say if the order for the exam was obtained in a way that breaks the Rules, the Division is not allowed to consider the opinion of the insurance company's doctor. This means the only choice for the Division to make about my client's impairment rating is 50%!  The 11% rating was obtained by breaking the Rules.

It is important to know the Rules when making decisions about your worker's compensation injury in Texas. They often make the difference between getting what you deserve or getting what the insurance company and its lawyer have in store for you. This is very true when it comes to impairment ratings.

For more info about technicalities and impairment ratings, click here.

Texas workers' compensation law (Texas Labor Code §401.011(30)) defines maximum medical improvement as the earliest date after which further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.  The mistake these doctors make when they back-date MMI or refuse to amend an MMI certification after surgery is one of perspective.  They look at actual outcomes instead of expected outcomes.  They rewrite the statutory definition of MMI to "the earliest date after which there was no further material recovery from or lasting improvement to an injury."  Sounds the same at first glance.  Certainly sounds like the definition of MMI that is most often used these days.  But the statute has the phrase "can no longer reasonably be anticipated."  The Appeals Panel has held that this language actually has meaning and can't be ignored.

The Appeals Panel recognized that the definition of MMI includes the phrase "can no longer reasonably be anticipated," in Appeal 072242.  In that decision, it was noted that the question of MMI is not whether the claimant actually recovered, but whether the claimant expected recovery from upcoming treatment.  After the designated doctor stated that the injured worker had reached MMI, the patient had surgery.  The DD refused to change the MMI date after that surgery.  The Appeals Panel stated that the surgery was performed with a reasonable medical probability that further material recovery could reasonably be anticipated.  The only reason the claimant was having surgery was to get a better recovery.