In a follow-up to my last post, I wanted to reprint an article I wrote for a newsletter that went out to doctors.  It explains how designated doctors are saying that injured workers have reached maximum medical improvement because there is no expectation that the impairment rating will change by 3% in the future.  When a designated doctor says something like this in a report, it demonstrates that they don't know anything about MMI and how to determine whether it has been acheived.  If a designated doctor says that in your impairment rating report, you need to get legal help immediately. 

MMI Is Not A Function Of A Change In Impairment Rating 

     While the Division has significantly limited claimants' impairment ratings with its interpretation of the AMA Guides, it has not allowed the concept of maximum medical improvement to erode from its statutory definition.  The concept of MMI had been in flux, and even recently was under attack by the Medical Quality Review Panel and the Office of the Medical Advisor who began advising doctors that they should not use the date of the exam as the date of MMI, but should use some prior date to backdate MMI.  The concept of MMI began to be based on outcomes only, not expected outcomes.

     In a prior edition of this newsletter we highlighted Appeals Panel Decision (APD) 072242 where the Division made it clear that the full statutory definition of MMI was to be used.  Texas Labor Code Section 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.  In that case, the Appeals Panel noted that the question of MMI is not whether the claimant actually recovered, but whether the claimant expected recovery from upcoming treatment.  Prior to that time, MMI had been reduced to a question of whether the claimant did in fact recover from additional treatment, not whether the claimant expected to recover from additional treatment.

     Since we wrote about this concept several months ago, the Appeals Panel has continued to confirm that the expectation of recovery from treatment is tantamount to the question of MMI.  In Appeals Panel Decisions 110670 and 110896 the panel declared that the expected recovery from surgery and chronic pain management following a designated doctor's certification of MMI was enough to overturn that doctor's opinion.  In 110896, though, we get further clarification that other concepts of MMI will not be allowed to water down the statutory definition prescribed by the Legislature.

     In APD 110896, the claimant went through both surgery and a chronic pain management program following a designated doctor's certification that he had reached MMI.  When questioned as to whether the surgery and additional treatment affected MMI, the doctor declared it did not because that treatment "would not increase or decrease the claimant's impairment rating by more than 3%." The Panel was clear that this is not the standard for MMI, and reversed the Hearing Officer's decision that had rubber-stamped the designated doctor's opinion.

     Many designated doctor reports have language in them about MMI being tied to a 3% or greater change in impairment.  This has no basis in the law and may taint the doctor's entire opinion.  All of these reports are, therefore, suspect and should be reviewed for other errors also.  Remember that MMI is never dependent on the impairment rating.  Impairment ratings are dependent on the attainment of MMI.