On September 15, 2011, the Appeals Panel of the Texas DWC significantly stacked the deck against injured workers who disagree with their impairment rating.  And when the Texas workers compensation law didn't help them do it, the Division made up their own law. 

In Appeal Panel Decision 111006, the Division changed one of the methods to "dispute" an impairment rating.  The law has always been that there are only two ways to dispute an impairment rating - request a designated doctor or request a benefit review conference.  If a designated doctor has already been appointed, the only method available to dispute the impairment rating was the request of a benefit review conference.  The change occurred when the Appeals Panel determined that not only must the benefit review conference be requested, but the Division has to schedule the BRC for the dispute to become effective. 

The main problem with this is that the Division denies BRC requests all the time for insignificant reasons.  So if the Division fails to set your benefit review conference, you failed to dispute your impairment rating.  This means that everybody must ignore the 90 day deadline to file impairment rating disputes and treat it as a 45 day or 60 day deadline - you must leave extra time for the Division's denial of the BRC so you can resubmit the request and "correct" any of the alleged shortcomings of the BRC request. 

The legal problem with this decision was that the Appeals Panel used the Preamble to the rule about requesting benefit review conferences (Rule 141.1) to come up with this conclusion.  The actual rule does not specify the requirement that the Division actually set the BRC for hearing, just that the claimant file the request.  By adding in this requirement, it became apparent that the Division tricked everybody when they wrote Rule 141.1 and put it out for comment before adopting it as a Rule.  Who knew that the Rule was not the rule, but what they didn't put in the Rule would be the rule?  By leaving out the most important part of the actual rule, the Division found a way to adopt a crazy and unfair rule that could be used against injured workers and avoid the public outcry and debate that would have resulted by putting its actual intentions into the actual Rule to start with.  This is shameful. 

So beware that the ninety day rule is not a true ninety day rule.  If you file your request for BRC on the 89^th day and the DWC denies the request because you spelled your employer's name wrong on the form, you will be told that you failed to dispute your impairment rating.  Nevermind that your intentions were clear.  You must file for the BRC at least by the 60^th day to allow enough time for the Division to process the request so that if it is denied you will still have time to re-file your dispute. 

Just remember, in Texas workers' compensation law, the law is never really the law.  You have to know what laws are real, what made-up laws are real, and what real laws are not followed.