LEGAL GUIDE
Written by attorney Matthew Bruce Lewis | Aug 9, 2013

Texas Workers' Compensation: Maximum Medical Improvement (MMI) Is Not Based On ODG or MDA Guidelines

One of the recent trends in Texas workers' compensation claims is how designated doctors are using the Medical Disability Advisor (MDA) or the Official Disability Guidelines (ODG) to establish when a patient reaches MMI. Many injured workers are having their benefits taken away or cut off prematurely by this practice. Let me explain why this is wrong.

Maximum Medical Improvement is the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated. It's basically the point in time when you have healed as much as you can be expected to heal from your work injury. It is supposed to be based on a review of your medical records and a physical examination. This means that MMI is all about you. YOUR recovery. The treatment that YOU need.

The MDA is a book that the Division of Workers' Compensation uses to get a feel for the average amount of time an average person is supposed to be off work for a specific type of injury. So, it may tell you that a person with a low back sprain that works a job classified as "heavy" should be off work between 7 and 84 days, and that most miss about 35 days. Using this standard to certify MMI means that the doctor is not certifying when you have healed, but certifying when an average person should be able to return to work on at least modified/restricted duty. Many people can return to work before they have healed. These are two different standards.

The ODG is a book that the Division of Workers' Compensation uses to determine what kind of treatment a person should have for a specific type of injury. So, it may tell you that a person with a low back injury might need an MRI, but not before 3 to 4 weeks of conservative therapy with no improvement. Using this standard to certify MMI means the doctor is not certifying when you have healed, but is certifying a date after which an average person with no complicating factors would exhaust medical treatment. This doesn't factor in all the time wasted when insurance companies deny treatment. This is not a certification about YOU, it's a certification about other people in "normal" circumstances.

The way the trend has played out is contrary to the vision of the workers' comp scheme. What happens is that a doctor comes in and spends 5 minutes with you and then says you reached MMI 6 months ago. Because temporary income benefits (lost wage benefits) can't be paid after you reach MMI, your benefits are cut off. Even worse, since you have been paid temporary income benefits for the last 6 months, those will now count as your impairment income benefits. This means you are paid out, you get nothing else, and you don't get any notice. You get kicked to the curb.

The Division of Workers' Compensation has finally ruled on this practice. In Appeal Panel Decision 130191, the panel ruled that using the MDA and the ODG to determine maximum medical improvement violates the rules requiring this certification to be based on the physical exam and the medical records.

If your impairment rating report says anything about the ODG or the MDA, then you need to have it reviewed immediately by an attorney. This should be a free service (at least it is at my office).

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