Tuesday, August 6, 2013

Texas Rules, Evidence and the Supreme Court

I write quite a bit in this blog about substantial evidence and how the concept can get misconstrued by various parties.

There is a very interesting case before the Texas Supreme Court that essentially deals with the concept of substantial evidence, but with a bit of a twist: can a medical report still be substantial evidence upon which to support an award if the medical report has an erroneous regulatory date in it due to failure of communication by the governing authority?

The case is State Office of Risk Management v. Elaine E. Banks Joiner.

In the underlying workers' compensation case, the hearing officer issued an award based on the medical reporting of the claimant's treating physician, Dr. Brent Davis.

Dr. Davis gave Joiner an impairment rating of 34%, but his medical reporting form had a date of Maximum Medical Improvement that was seven days past the date to which it was stipulated at the Texas Workers' Compensation Commission (7/10/2006).

The defense obtained a Designated Doctor exam from Dr. Elliot Bader, which rated 7%.

Dr. Bader's report also had the wrong MMI date, listing it as seven days before the "statutory" MMI date.

Thereafter, Dr. Bader was sent a letter to review Dr. Davis' report and was asked to reconsider his rating. That letter also advised Dr. Bader of the correct MMI date.

That information was never transmitted to Dr. Davis.

Dr. Bader did not change his opinion on impairment rating but did correct the date of MMI in his subsequent report.

The hearing officer, regardless of the incorrect MMI date, based his award on the opinion of Dr. Davis.

The issue in the case is now before the Supreme Court as to whether the hearing officer could have legally justified his award on the basis of a medical report with an incorrect statutory/regulatory MMI date.

SORM argued the regulations are clear about MMI dates and reporting. Joiner's attorney countered in his brief:

"The Workers' Compensation Act and Division rules are also clear in what they do not say. SORM cannot cite a single statute, rule, or court decision invalidating a doctor's certified impairment rating on the basis that the doctor incorrectly stated the statutory MMI date on a form. This is not because the legislature or division did not contemplate that certain requirements invalidate a report. Both the Labor Code and division rules specify when a report is invalid, and neither suggests that an impairment rating assigned after statutory MMI will result in invalidation because of a misstated date."

SORM argues strict construction, stating that the DWC rules currently give claimants clear notice that impairment ratings based on erroneous MMI dates are inadmissible.

Joiner's attorney is not so convinced that the rules are so clear, nor that they are of such a mandatory nature.

He argues, "The TWCC 69 forms stipulates that the treating doctor, by law is entitled to know, review and correct information that TWCC collects on its form about them."

SORM also argues that Davis did not correctly calculate the impairment rating, failing to accurately follow the AMA Guides - I don't know if that is an accurate assessment but certainly could be a factor in whether Davis' report could be relied upon.

To complicate matters, there is a rule-making process that has been under way for some time at the Texas DWC to clarify application of the MMI rule.

But the truth of the matter is that this is really about substantial evidence - does the date of MMI REALLY make a difference in whether a medical report is sufficient to support an award?

At question is Texas Rule 130.1. That rule provides for the specific assignment of an MMI date and further provides:

"Assignment of an impairment rating for the current compensable injury shall be based on the injured employee's condition as of the MMI date considering the medical record and the certifying examination."

The Texas Supreme Court has been taking its time on this case. Review was requested in May 2012, but the court kept the case pending until February of this year, when it requested additional briefing to help it decide whether to grant review of the case.

I'll make a bold prediction (but don't go to Vegas with this): The Supreme Court will rule in favor of Joiner because Davis' report is "good enough" notwithstanding an erroneous MMI date (which in effect really only affects the date benefits are to begin...).

There you have it - I hope my crystal ball doesn't need polishing.

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