The Division of Workers’ Compensation is now enforcing it’s interpretation of the rules requiring a physical examination prior to any certification of maximum medical improvement (MMI).
In the past, a claimant would have been examined by a designated doctor (DD) and may have been found to be at MMI. After additional treatment, the claimant would then ask the DWC to contact the DD with a letter of clarification and ask the DD to review the new medical records to see if that treatment affected the determination of MMI. If the DD changed the date of MMI, then the claimant could pursue additional benefits that could be owed.
Now, if the DD reviews the new medical records and changes the MMI date, the DWC will determine that the change in MMI was not valid. If the case has not been set up properly, there won’t be an alternative rating from another doctor. If the only impairment ratings in evidence are the DD’s original certification and then the amended certification that is now determined to be invalid, then the claimant is stuck with the original impairment rating and MMI date with no further recourse. This would be a tragedy, but is fairly common when the claimant is represented by a non-lawyer ombudsman.
The proper way for this situation to be handled is to recognize the invalidity before pursuing MMI ina contested case hearing. The claimant should ask to have the DD re-examine the claimant if the DD thinks the new medical records could affect the prior determination that the claimant was at MMI. Then, any changes would be based on a physical exam in addition to the new medical records, and it would be valid and would be given presumptive weight.
This is another example of the huge traps that lurk in the Texas workers’ compensation system. If you don’t know the smallest details of the law, you could find yourself losing out on a lot of benefits to which you should be entitled. For example, an impairment rating case is like no other in the system. If you go to a contested case hearing on this issue and either party appeals the decision into the Texas courts, the parties are limited to the evidence that was presented to the Division. That is not the case with any other issue that is litigated at the DWC. And if you had been at the CCH with the amended MMI certification that was based only on the DD’s review of new medical records…you can now see how huge a mistake that could be. It could cost you everything.