MMI in Texas
This guide is provided to help injured workers to navigate, or at least understand better the process of Maximum Medical Improvement, Impairment and their impact on Extent of Injury in Texas. It is a copy of my scholarly article written for a State Bar of Texas Continuing Legal Education.
Generally SpeakingA discussion of Maximum Medical Improvement (MMI) will necessarily need to begin with an understanding of the definition of the terms and their interaction. Maximum Medical Improvement has been defined as the earlier of:
“(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably anticipated; (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or (C) the date determined as provided by Section 408.104.” Texas Labor Code §401.011(30).
Obviously, several things stand out in this provision, the largest being the necessity of a definition of the term “injury.” Luckily the code also provides a definition of that term in that injury means, “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.” Texas Labor Code §401.011(26). The definition of an injury in the Texas Labor Code doesn’t simplify the matter for the attorney who practices Workers’ Compensation as there will likely always be a difference of opinion between what the Claimant states is the compensable injury, and the injuries which the Insurance Carrier is willing to accept were caused by the work-related incident and therefore are part of the compensable injury. As we will discuss the definition of the compensable diagnoses, or the extent of the compensable injury, is quite important and has a direct impact on the matter of Maximum Medical Improvement.
Moreover, there exists at least two common times at which an average injured worker attains the status of Maximum Medical Improvement. The first of these would be when they reach a point based on reasonable medical probability, the Claimant is not expected to experience any further material recovery from or lasting improvement to an injury. Texas Labor Code §401.011(30)(A). This is commonly referred to has Clinical Maximum Medical Improvement and can occur at any point between the date of the injury and the date of Statutory Maximum Medical Improvement. The second most common time a Claimant will find himself at Maximum Medical Improvement is through the passage of time; reaching Statutory Maximum Medical Improvement. Texas Labor Code §401.011(30)(B), includes a provision, should the Claimant have not reached Maximum Medical Improvement, by which a Claimant is at Maximum Medical Improvement as a matter of law. This will occur 104 weeks from the date the income benefits begin to accrue. Therefore, this will occur at the expiration of 104 week from the Claimant’s 8th day of disability. See generally Texas Labor Code §408.082 “Accrual of Right to Income Benefits.”
Likewise, §401.011(30)(C) references section 408.104. Texas Labor Code §408.104 is a section which provides a mechanism by which a Claimant and his attorney may seek to extend the date of Maximum Medical Improvement. This is a much more uncommon occurrence to say the least. It is a mechanism that should be remembered by the Attorney who represents an Injured Worker to say the least; however, it is not something that one would encounter on a daily basis and for good reason. Texas Labor Code §408.104 serves to extend the Maximum Medical Improvement date after spinal surgery. The relevant sections of §408.104 read
“(a) On application by either the employee or the insurance carrier, the commissioner by order may extend the 104-week period described by Section 401.011(30)(B) if the employee has had spinal surgery, or has been approved for spinal surgery under Section 408.026 and commissioner rules, within 12 weeks before the expiration of the 104-week period. If an order is issued under this section, the order shall extend the statutory period for maximum medical improvement to a date certain, based on medical evidence presented to the commission.”
For the practitioner who may find himself confronted with this specific issue, please refer to Texas Administrative Code §126.11 and the Division of Workers’ Compensation form 57 which is the required form when requesting an extension of Maximum Medical Improvement based upon spinal surgery. See Appendix I for DWC-57 form.
Influencing FactorsThe single largest influencing factor in making a determination of Maximum Medical Improvement is the extent of the compensable injury. Quite often, if one of us is handling a Workers’ Compensation matter, there is a difference on some level regarding what the Claimant believes the compensable diagnoses to be and what the Insurance Carrier believes are the same. Without getting into an entire discussion regarding extent of injury, it is not difficult to envision situations in which Claimant’s undergo MRIs and/or CT scans and are given diagnoses of osteoarthritis, bulged discs, degenerative disc disease, degenerative join disease, cysts and the like. The Claimant, having “never” had an issue prior to the date of the injury now believes all of those diagnoses to be caused by the work-related injury. The Carrier will see the words degenerative and arthritis and believe the same diagnoses to be pre-existing. A definition of the extent of injury is quite important and absent such a defined extent of injury, there may be issues with the date of Maximum Medical Improvement date. The less severe the extent of the injury, the sooner a Claimant will attain Maximum Medical Improvement; conversely, the more extensive and severe the injury, the longer it should take a Claimant to reach Maximum Medical Improvement.
Treatment should also have some bearing on whether a Claimant is moving toward Maximum Medical Improvement. If a Claimant has not had the full amelioration of treatment for his accepted extent of injury diagnoses, it would be quite unlikely the same Claimant would have made any progress in moving toward Maximum Medical Improvement.
And if we are being fair the doctor performing the examination for Maximum Medical Improvement can have a great influence with regard to whether a Claimant has reached the same. While it should be relatively clear whether or not a Claimant has reached Maximum Medical Improvement or not, that is rarely the case. Some doctors have been known to look at guidelines for return to work and relied upon those when determining whether a Claimant has reached Maximum Medical Improvement. Another doctor examining the same Claimant may rely more on the fact that little to know treatment has been done and with an injection and an interdisciplinary therapy program the Claimant should show improvement and argue; therefore, said Claimant is not a Maximum Medical Improvement.
Validity and 90-daysThe first thing that either Claimant or Carrier Counsel should check is validity of the certification.
A certification of Maximum Medical Improvement will include an assessment of an Impairment Rating. The certification is subject to finality assuming it is valid. This can be troublesome as the rating may include diagnoses the Carrier has not accepted, not include diagnoses the Claimant has won through dispute resolution in the system or be based upon an examination of person who clearly is not the Claimant or no examination has ever occurred for this purpose (I have seen both of these instances occur).
The Labor Codes states, “Except as otherwise provided by this section, an employee’s first valid certification of maximum medical improvement and first valid assignment of an impairment rating is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and carrier by verifiable means.” Texas Labor Code 408.123(e). While there are some rare exceptions to challenging these matters found in subsection (f) for purposes of this article subsections (h) which states, “if an employee’s disputed certification of maximum medical improvement or assignment of impairment rating is finally modified, overturned, or withdrawn, the first certification or assignment made after the date of the modification, overturning, or withdrawal becomes final if the certification or assignment is not disputed before the 91st day.” Therefore, one could clearly envision a Claimant who is placed at Maximum Medical Improvement, disputes the same in a timely fashion and then enters into an agreement or has an Administrative Law Judge determine he has not reached Maximum Medical Improvement, thusly preventing the rating from becoming final. Should the same Claimant not pay attention, he would then be subject to being certified to have reached Maximum Medical Improvement once again and, when that occurs, he will be subject to the same 90-day provision and its finality issues.
Then what is a valid certification and assignment? Unfortunately, the Texas Labor Code is not much help in delineating validity requirements and one must look to the Texas Administrative Code. With regard to validity of a certification or assignment, it takes quite little for the documentation to be valid.
“A certification of MMI and/or IR assigned. . .must be on a Form [D]WC 69, Report of Medical Evaluation. The Certification on the Form [D]WC 69 is valid if: (1) There is an MMI date that is not prospective; (2) There is an impairment determination of either no impairment or a percentage impairment rating assigned; and (3) There is the signature of the certifying doctor who is authorized by the [Division] under §130.1(a) to make the assigned impairment determination.” Texas Administrative Code §130.12(c).
One must be cognizant of what is required and what is required only. The date simply may not be a date that was in the future as of the date the DWC-69 was signed; doctor A cannot see the Claimant and sign the report on May 11th but place the Claimant at MMI on July 16th of the same year. There must be an impairment rating or a determination the Claimant has no permanent impairment. A doctor not certified to provide an impairment rating, can provide a certification in which he states there is no impairment as a result of the injury. Lastly, the doctor must sign the form, an electronic or stamp signature is sufficient in this regard as well. Clearly, there is not much that is required to make a certification and assessment valid. See Appendix II for the DWC-69 form.
If the rating is a valid rating, then the attorney must make some quick determinations with regard to what is in the certification. Paramount is what injuries were the basis of the certification of Maximum Medical Improvement. From a Claimant’s perspective, if there is a disputed condition or diagnosis which could render the Claimant not at Maximum Medical Improvement he would be better served filing a dispute to make sure he can preserve his right to do so while he tackles the extent of injury matter directly. From the Carrier’s perspective does the certification include diagnoses which were specifically denied; and if so, has their inclusion effectively prolonged the certification of Maximum Medical Improvement and potentially increased the Impairment Rating; could it spell further doom for the Carrier at a later date? Since the diagnoses upon which Maximum Medical Improvement is predicated need to be rated, would that result in a different Impairment Rating for either party (not the subject of this paper; however, quite important)? Does that change in Impairment Rating mean a Claimant is eligible for Supplemental Income Benefits who would not have been otherwise, or that an injured worker who is not currently eligible for Supplemental Income Benefits would then be eligible assuming a successful contest?
OverpaymentsThere is only a preclusion the Maximum Medical Improvement date may not be prospective.
There is no likewise preclusion the date may not be in the past. Simple logic would dictate a certification of Maximum Medical Improvement would have to occur after the date of the injury, but there is no mandate the certification of Maximum Medical Improvement must be on the date of the examination. Therefore, should the certifying doctor; after the examination, review of the records and consultation of the MDA Guidelines for return to work reach a determination the Claimant reached Maximum Medical Improvement two or three months previous he is able to certify the same.
Should this occur, there very well could be an overpayment which will impact the amount of benefits paid to the Claimant. When there is a back dating of the Maximum Medical Improvement date, any Temporary Income Benefits which were paid after the date of Maximum Medical Improvement would need to be then re-classified to Impairment Income Benefits. In some instances a Claimant may have been paid for 15 weeks of Temporary Income Benefits and then receive a back dated Maximum Medical Improvement date which would then mean his Impairment Income Benefits are paid out and his benefits would then cease.
Entitlement to Supplemental Income BenefitsClaimants who receive a 15% Impairment Rating or higher are theoretically entitled to
Supplemental Income Benefits should the qualify for the same. For Insurance Carriers this may be undesirable, for Claimant’s and their attorneys it can be very desirable. Unless you’re new to Workers’ Compensation issues you most likely are aware of the fact when an insurance carrier disputes a Claimant’s entitlement to Supplemental Income Benefits and a Claimant is successful in demonstrating entitlement; whether through agreement or the culmination of the dispute resolution process, the Carrier could potentially be liable for the Claimant’s legal fees.
For this reason, it is even more important for both parties to look at the date of Maximum Medical Improvement, the date the valid rating was received by the party and calculate the 90-day time frame. Quite obviously the Maximum Medical Improvement date and the Impairment Rating will become final at the same time; therefore, one may find it necessary to dispute it prior to the 90 days having run, or to wait and make sure the matter runs so the Maximum Medical Improvement date and the Impairment Rating become final by operation of law.
Extent of Injury DisputesDisputes involving the extent of injury need not always be pursued within the 90-day timeframe.
While that may seem to be counter-intuitive it may yet serve its purpose. In reviewing Texas Administrative Code §130.12(a)(4), a specific provision applies with regard to multiple certifications of Maximum Medical Improvement and Impairment Rating when there is a dispute regarding the extent of the compensable injury.
“A designated Doctor may provide multiple IRs if there is a dispute over extent of injury. Whichever rating from the designated doctor applies to the compensable injury once and extent of injury (EOI) dispute has been resolved may become final if not disputed. An EOI dispute does not constitute a dispute of the MMI/IR for purposes of finality under this subsection.”
Quite often now one or another party may request a Designated Doctor to assist in helping the parties to resolve a dispute regarding the extent of the injury. When this occurs, the Designated Doctor must do a certification for (1) the injuries the Carrier accepts as compensable, (2) the injuries that have been asserted to be caused by the extent of injury as well as the accepted injuries and may do one for (3) the accepted injuries and the diagnoses in dispute he believes to be caused by the work-related accident. In this scenario, the parties have two and probably three different ratings from which to choose; so which one becomes final?
The division says in these instances that once extent of injury is finally adjudicated, the rating which applies to those diagnoses which were finally determined to be part of the compensable injury is the one that becomes final. This means if neither party disputed the ratings when they were provided, and four months after all parties had a copy of the ratings the extent of injury is adjudicated, the 90-days applies to the rating and that rating will become final. It may be very important to one party to dispute the ratings immediately as the one adverse to them is either too low or too high in their estimation, if they fail to do so and later the extent is determined and found to be adverse to their position, they will be stuck with that rating. It may likewise be of no importance to dispute a rating for some parties. A Claimant may receive three ratings, two of them a 17% and one a 15%. Either way she would be eligible for Supplemental Income Benefits, to start the process would be to allow the Carrier to escape eligibility for Supplemental Income Benefits should they be able to persuade an Administrative Law Judge the rating should be lower; perhaps one that was provided by a Required Medical Examiner. If the Claimant can simply wait it out, then they can potentially reach an agreement because one of those ratings has to become final, theoretically.
Extent of Injury and Waiver (but that’s not supposed to exist right?)We have all been told there is no waiver with regard to extent of injury. The author
disagrees and believes that waiver is alive and in full effect in a very small circumstance. Building upon all of the issues which can arise when a Claimant is placed at Maximum Medical Improvement let’s look at this scenario:
Claimant injured while working as a helicopter pilot for air ambulance service
Claimant is placed at Statutory Maximum Medical Improvement on July 2, 2016
Awarded a 15% Impairment Rating for diagnoses of cervical herniated disc and cervical radiculopathy
From inception of Claim carrier accepted injury included cervical herniated disc and went so far as to state the same on the requests for a Designated Doctor
Carrier pays all 45 weeks of Impairment Income Benefits
Claimant files for first quarter Supplemental Income Benefits
Division awards Claimant and Carrier never disputes the entitlement
Two weeks prior to expiration of 1st quarter, Carrier disputes extent and claims cervical sprain/strain
Claimant files for and Carrier awards/pays the second quarter
Claimant files for and Carrier disputes quarters three and four stating the limiting factor which precludes his being able to return to work as he could prior, is the result of a cervical herniated disc and the compensable injury is cervical sprain/strain
Everyone operates under the assumption you cannot waive the extent of injury issue in Workers’ Compensation; however, inaction can lead to just such a result and this is what happened in a case recently in Abilene.
Both parties cited Texas Property and Casualty Insurance Guaranty Association for Reliance National Insurance Company, v. Doris J. Toberny, No. 03-08-00483-CV, which is a Court of Appeals case out of the Third District in Austin, filed on March 19, 2010. Toberny, turned on Texas Administrative Code §130.102(g) (now re-codified to §130.102(h)). This section states while discussing Maximum Medical Improvement and Impairment Rating Disputes,
“If there is no pending dispute regarding the date of maximum medical improvement or the impairment rating prior to the expiration of the first quarter, the date of maximum medical improvement and the impairment rating shall be final and binding.”
The court found this rule, operated to bar the company from contesting Toberny’s MMI and IR rating long after they were determined, that it was in harmony with the Act in that it provided finality for the injured worker and helped to compensate her and her family for the on-the-job injuries. Following that determination, the Court turned to the issue termed in the decision, of “Compensability, Extent of Injury and Waiver Under Rule 10.102(g).” Prior to doing so they discussed the concept of extent of injury, noting there is no definition of that concept in the code and seemingly inserting compensable or compensability for the term extent of injury. Despite their use of the incorrect term their rationale and decision was and is sound,
“While it is true that the plain language of the rule does not address compensability, for the rule to operate to finalize an impairment rating, it is necessary to imply that any condition used to calculate that rating must be deemed compensable for the purpose of that calculation. If the compensability of the conditions used to calculate the impairment rating were forever subject to review, and, if a future finding that a condition used to calculate the impairment rating was not compensable could invalidate a prior, finalized rating, then the rule could never truly finalize a rating. For us to hold otherwise here would effectively nullify the rule. Therefore, even assuming that Toberny’s impairment rating was made with non-compensable conditions, the rule functioned to deem them compensable for the purpose of computing the impairment rating.”
Going forward the Court termed their final section of the decision “Others Issues Fail Due to Waiver.” Within that section the Court addressed the need for expert medical evidence on the extent of injury issue and made it clear there was no need for such evidence as the certification had become final as had any and all diagnoses utilized in reaching the decisions regarding the Maximum Medical Improvement and Impairment Rating assessments. The Court offered,
“The Company notes that expert witness testimony is needed to establish causation as to medical conditions outside the knowledge of normal individuals. We need not reach this issue because former rule 130.102(g) bars the Company from contesting Toberny’s finalized impairment.”
In effect, they had solidified the notion the certification of Maximum Medical Improvement and Impairment Rating includes any diagnoses upon which those determinations were made by taking it one step further and dispensing with any and all requirements of expert-witness evidence regarding those matters.
One should note Toberny was not an isolated or one-off case when discussing the jurisprudence of Texas Workers’ Compensation. It was predated by several cases.
Claimant had a certification that included diagnosis of tremor disorder
Carrier disputed extent after the first quarter of SIBs expired
“Once the IR then became final pursuant to rule §130.102(g), what was included in the underlying compensable injury was established. Because the 53% IR included the tremor disorder and the IR was not challenged before the expiration of the first quarter of SIBs, the tremor disorder is included in the compensable injury.”
Court limited holding to, “cases involving: (1) challenges to extent of injury were the carrier contends the compensable injury dos not extend to a condition or body part; (2) an IR that includes impairment for that condition or body part; and (3) an IR that has not been challenged before the first quarter SIBs period expired.”
Hearing Officer determined there was no dispute of the MMI date nor the 15% IR prior to the expiration of the first quarter of SIBs
“the finality of the underlying conditions are limited to those specifically rated in the IR which became final pursuant to Rule 130.102(g).”
Likewise, there have been several cases which obviously follow the Appeals Panel decisions which predated Toberny as well as Toberny itself; although without actually mentioning the case.
Appeals Panel overturned a determination by a Hearing Officer the injury did not include RSD/CRPS of the right hand during a dispute over extent and the 6th-10th quarters of SIBs.
“The evidence establishes that the RSD/CRPS was rated in the IR that the SIBs quarters were based on. . . Once the IR became final, the RSD/CRPS became part of the compensable injury because that condition was rated in the Claimant’s IR.”