law-workers-comp-impairment-rating

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HOUSTON CASE LAW ON - IMPAIRMENT RATING OF WORKER'S COMP CLAIMANT

Impairment Ratings

A workers' compensation claimant is eligible to receive impairment income benefits if he continues to have an
impairment after reaching maximum medical improvement (MMI). Tex. Lab. Code. Ann. § 408.121. MMI is defined
as the earlier of "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" or "the expiration of 104 weeks
from the date on which income benefits begin to accrue." Id. § 401.011(30)(A), (B) (Vernon Supp. 2009). In order
to obtain impairment benefits, an employee must be certified by a doctor as having reached MMI and must be
assigned an impairment rating by a certifying doctor, the percentage of which expresses the extent to which the
claimant's injury permanently impaired his body. Id. §§ 401.011(24) (Vernon Supp. 2009), 408.123(a) (Vernon
2006).

All impairment ratings must be assigned by doctors based on a review of medical records and a certifying physical
examination performed explicitly to determine MMI and an impairment rating. See Tex. Lab. Code Ann. § 408.124
(Vernon 2006); 28 Tex. Admin. Code § 130.1(b)(2), (4)(B) (West 2009); Pac. Employers Ins. Co. v. Brown, 86
S.W.3d 353, 360 (Tex. App.--Texarkana 2002, no pet.). The statute appears to contemplate that physicians for
the claimant and the carrier may each make an impairment determination. Tex. Workers' Comp. Comm'n v.
Garcia, 893 S.W.2d 504, 514 (Tex. 1995). If their findings conflict, the claimant must be examined by a
"designated doctor" selected by mutual agreement of the parties or by the Division. Id. (citing Tex. Lab. Code.
Ann. § 408.125 (Vernon 2006)). The designated doctor's rating is binding on the Division if he or she was
selected by the parties, while the rating has presumptive weight if the doctor was selected by the Division. Id. In
the latter case, the presumption is overcome only if the great weight of the other medical evidence is to the
contrary, in which case the Division must adopt the impairment rating of "one of the other doctors." Id.

The requirements for assigning an impairment rating include performing a complete medical examination of the
employee for the explicit purpose of determining MMI, 28 Tex. Admin. Code § 130.1(b)(4)(B) (West 2009);
certifying the employee has reached MMI, 28 Tex. Admin. Code § 130.1(b)(2) (West 2009); identifying,
documenting, and analyzing objective clinical or laboratory findings of permanent impairment for the current
compensable injury, 28 Tex. Admin. Code § 130.1(c)(3) (West 2009); comparing the results of the analysis with
the impairment criteria and providing the following: a description and explanation of specific clinical findings
related to each impairment, including zero percent impairment ratings, a description of how the findings relate to
and compare with the criteria described in the AMA Guides, and explaining any inability to obtain the required
measurements, 28 Tex. Admin. Code § 130.1(c)(3)(D) (West 2009). The doctor assigning the impairment rating
shall assign one whole body impairment rating for the current compensable injury. 28 Tex. Admin. Code §
130.1(c)(3)(E) (West 2009).

In addition, in order to certify MMI and assign an impairment rating for the current compensable injury, the
certifying doctor is required to complete, sign, and submit the report of medical evaluation and a narrative report
to the Division and the parties involved within a certain time frame. Id. § 130.1(d). The narrative report must
include the date of the certifying examination; the date of MMI; findings of the certifying examination, including
both normal and abnormal findings and an explanation of the analysis performed to find whether MMI was
reached; a narrative history of the medical condition that outlines the course of the injury and correlates the injury
to the medical treatment; the current clinical status; diagnosis and clinical findings of permanent impairment as
stated above; and the edition of the AMA Guides used in assigning the impairment rating. Id.
American Zurich Ins. Co. v. Samudio (Tex.App.- Houston [1st Dist.] Feb. 11, 20 10)(Alcala)
(carrier loses workers compensation appeal over worker's impairment rating, plea to the jurisdiction in judicial
review suit affirmed, attorney fees award for prevailing claimant workers comp appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00233-CV American Zurich Insurance Company v. Daniel Samudio
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood

Kelly v. American Interstate Insurance Co. (Tex.App.- Houston [14th Dist.] Nov. 25, 2008)(Brown)
(venue, motion to transfer venue, MTV, exhaustion of administrative remedies, plea to the jurisdiction, workers
comp, compensable injury, benefits denial, preauthorization, plea to the jurisdiction, workers comp, compensable
injury, benefits denial, preauthorization)
AFFIRMED: Opinion by Justice Jeff Brown
14-07-00083-CV Jimmy J. Kelly v. American Interstate Insurance Co., Hammerman & Gainer, Inc., and Sheryl
Butman--Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally

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