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Appeals Panel No. 141731 (Decided 10/14/2014)

Posted: Dec 18, 2014
Comments: 0

Overcoming Designated Doctor's MMI Date & Impairment Rating

Facts

 

The claimant sustained a lumbar sprain strain and cervical sprain strain while working in the bucket of a truck when a tree tied to the bucket fell and caused the bucket to swing.

 

Issues:

 

Does compensable injury (lumbar sprain strain and cervical sprain strain) extend to disc dehydration at L1-2 and L5-S1, a disc protrusion at L5- S1, and right S1 radiculopathy?

 

Has the claimant reached MMI and, if so, what is the impairment rating?

 

Evidence

The Designated Doctor Dr. S examined the claimant on August 8, 2013. Dr. S states in her narrative report that “[t]he date of [MMI] is May 8, 2013.” However, Dr. S's Report of Medical Evaluation (DWC-69) states that she certified the claimant reached clinical MMI on “[May 2, 2013].” There is no DWC-69 in evidence from Dr. S with a May 8, 2013, date of MMI.

 

CCH D&O

 

The Hearing Officer (HO) resolved the disputed issues by deciding that: (1) the compensable injury does not extend to disc dehydration at L1-2 and L5-S1, a disc protrusion at L5- S1, and right S1 radiculopathy.  In addition, The HO found that the claimant reached maximum medical improvement (MMI) on May 2, 2013; and that the claimant's impairment rating (IR) is zero percent.

 

AP Decision

 

The AP affirmed the HO's determination that the compensable injury does not extend to disc dehydration at L1-2 and L5-S1, a disc protrusion at L5-S1, and right S1 radiculopathy.  In addition, the AP reversed the HO's determinations that the claimant reached MMI on May 2, 2013, with a zero percent IR, and rendered a new decision that the claimant reached MMI on April 11, 2013, with a zero percent IR.  The AP reversed the HO’s MMI and IR because the DD gave two different MMI dates.  The AP explained that “There is an internal inconsistency between the MMI date Dr. S certified in her narrative report and the MMI date Dr. S certified on the DWC-69. Because the narrative report and DWC-69 list completely different dates regarding when the claimant reached MMI, we do not consider that internal inconsistency to be a clerical error that can be corrected. See Appeals Panel Decision (APD) 130739, decided May 7, 2013, and APD 141281, decided August 7, 2014. Accordingly, we reverse the hearing officer's determination that the claimant reached MMI on May 2, 2013.  With regard to the IR, Rule 130.1(c)(3) provides that an assignment of IR shall be based on the claimant's condition as of the MMI date. Given that we have reversed the hearing officer's MMI determination, we also reverse the hearing officer's determination that the claimant's IR is zero percent.

 

Lesson

 

If you are trying to beat a DD report, check the MMI date on the DWC 69 against the MMI date in the narrative.  If they don’t match exactly, you can beat the DD’s report; however, make sure you have another adoptable report to offer into evidence.

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