The Texas Workers' Compensation Commission (the Commission) adopts new §130.1, concerning Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment and the simultaneous repeal of the current §130.1, concerning Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment. New §130.1 is adopted with changes to the proposed text published in the November 19, 1999, issue of the Texas Register (24 TexReg 10275). The simultaneous repeal of §130.1 is adopted without change.

The changes are adopted primarily as a result of new legislation enacted by the 76th Texas Legislature. Specifically, §12 of House Bill 2510 gives the Commission the authority to, by rule, adopt the Guides to the Evaluation of Permanent Impairment , fourth edition, published by the American Medical Association (fourth edition). The new rule changes use of the Guides to the Evaluation of Permanent Impairment, from third edition, second printing, dated February, 1989, published by the American Medical Association (third edition) to the fourth edition for certain impairment ratings, and clarifies portions of the previous rule. The change from the third edition to the fourth edition is effective for certifying examinations conducted after October 15, 2001, unless, at the time of the certifying examination there is a certification of maximum medical improvement (MMI) which was made prior to October 15, 2001 and which has not been withdrawn through agreement of the parties or overturned by a final decision. The third edition remains applicable for these transitional situations.

As required by the Government Code §2001.033(1), the Commission's reasoned justification for this rule is set out in this order which includes the preamble, which in turn includes the rule. This preamble contains a summary of the factual basis of the rule, a summary of comments received from interested parties, names of those groups and associations who commented and whether they were for or against adoption of the rule, and the reasons why the Commission disagrees with some of the comments and proposals.

Changes made to the rule as it was proposed are in response to public comment received in writing and at a public hearing held on January 12, 2000, and are described in the summary of comments and responses section of this preamble. Other changes were made for consistency or to correct typographical or grammatical errors. Specifically, changes in the proposed text are found in subsections (b), (c), (d), and (e) of the rule.

The new rule is adopted to include in the rule some of the Commission's long standing policies and to address problems with the previous rule that were identified by the Claims Service Task Force (a group of representatives from the system appointed by the Commission to serve as a sounding board for ideas regarding rule development), other system participants, and Commission staff. Other changes from the previous rule include formatting and consistency issues designed to simplify and shorten rule construction. The structure of the rule is more prescriptive and clear. The rule is designed to more clearly lay out expectations so that all system participants will understand the requirements that the Act and rule place on them. It is expected that together, these changes will improve benefit delivery, reduce disputes, make dispute resolution easier, reduce violations, and make it easier to hold system participants accountable for their actions and inactions.

The new rule is adopted to clarify the process of certifying MMI and assignment of an impairment rating by setting out the essentials of a medical evaluation, and a complete Report of Medical Evaluation. The adopted rule is designed to clearly lay out expectations so that all system participants will understand the requirements that the Act and rules place on them. It is expected that these changes from the previous rule will ensure evaluations and reporting requirements are performed timely and increase consistency of impairment ratings.

The new rule also adopts the fourth edition for certain examinations after October 15, 2001. The third edition and the fourth edition differ regarding the method by which ratings of the spine are assigned. In the third edition, the "Functional Model" or "Range of Motion method" (ROM) is the primary method by which to rate impairment of the spine. A concern with the ROM method has been that in applying ROM technique, other clinical data and diagnostic information may be ignored. In addition, there is concern about the accuracy and reproducibility of ROM measurements. The ROM method does not take into account age-related changes in the spine. The fourth edition presents different techniques to measure impairment to the spine. The primary impairment rating technique in the fourth edition for back injuries, which applies especially to an injured employee's traumatic injury, is called the "injury model" or "Diagnosis-Related Estimate" (DRE). This technique involves assigning an injured employee to one of eight categories, such as minor injury, radiculopathy, loss of spine structure integrity, or paraplegia, on the basis of objective clinical findings. The other technique allowed by the fourth edition is to obtain information is the ROM model, as used in the third edition. Under the fourth edition, if there is uncertainty or disagreement into which category of the DRE technique the injured employee belongs, then the ROM model may be applied. In the fourth edition, the ROM model is used to assist in correctly assigning the injured employee to one of the eight categories.

The fourth edition offers the following advantages over the third edition:

Injuries to the back are the most common work related injury. The DRE technique for the assignment of an impairment rating for injuries to the back is simpler for health care providers to use and apply because the rating is based on the diagnosis, not on mobility measurements that are often difficult to obtain and that are seldom reproducible. It is anticipated that the simplicity of the technique will accelerate the impairment rating process while providing more accurate and consistent impairment ratings.

Because of the simplicity of the DRE technique for assigning impairment ratings for injuries to the back, the process by which impairment ratings are derived will be more easily understood by all participants in the Texas workers' compensation system.

The fourth edition is based on more recent clinical information than the third edition, which allows accurate rating of more medical conditions than was possible with the third edition. In addition, the fourth edition provides impairment rating information for more diagnoses than the third edition. The third edition does not have instruction for the rating of commonly diagnosed work related injuries, such as dysfunctions of the temporomandibular joint and carpal instability.

The fourth edition clarifies impairment rating instructions given in the third edition. In the third edition, several sections, including the section regarding the rating of impairments to the spine, contain instructions that allegedly were open to several interpretations. The fourth edition corrects many of these situations by providing clear and concise instructions that are less subject to misinterpretations.

In addition to the reasons discussed elsewhere in this preamble, the Commission adopts the fourth edition because it is the current edition and reflects the most recent, up-to-date guidance by the AMA for rating impairment. In addition, the third edition is no longer in print which makes it increasingly difficult to obtain. In the United States, the fourth edition is the most commonly used guide for rating permanent impairment (Spieler, et al ., Journal of American Medical Association, January 26, 2000, volume 283, no 4, page 519). According to the Workers Compensation Research Institute's study, Permanent Partial Disability Benefits: Interstate Differences , and inquiries by the Commission 38 states use the fourth edition.

New subsection (a) is adopted to clarify who may certify MMI and to emphasize that any doctor who meets the definition laid out in Texas Labor Code, §401.011(17), is permitted to certify MMI.

New subsection (b) is adopted to clarify the meaning of and the procedures for certifying MMI; an injured employee must first be at either medical MMI or statutory MMI before an impairment rating is assigned. New subsection (b): defines MMI as stated in the Texas Labor Code, §401.011 (30); clarifies that MMI must be certified before an impairment rating is assigned; explains that MMI must be certified by a doctor as defined in subsection (a); and describes the procedure required for the certification of MMI.

New subsection (c) is adopted to clarify the process for assigning an impairment rating, and to emphasize that an impairment rating is to be based on permanent impairment that is the result of a compensable injury. Language in new subsection (c) clarifies the authority of the certifying doctor to refer the injured employee to another healthcare provider to obtain information necessary to assign an impairment rating. This subsection holds the certifying doctor responsible for evaluating and documenting the findings of a referred health care provider.

In addition, new subsection (c) sets up the transition to the fourth edition as the version of the AMA Guides which doctors are required to use to assign impairment ratings. To clarify that future changes to the fourth edition were not adopted by the Commission and to avoid any confusion regarding what fourth edition Guides should be used, the reference to the fourth edition has been changed to "the fourth edition of the AMA Guides (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the AMA prior to May 16, 2000). If a subsequent printing(s) of the fourth edition of the AMA Guides occurs, and it contains no substantive changes from the previous printing, the Commission by vote at a public meeting may authorize the use of the subsequent printing(s)." A certifying examination conducted on or after October 15, 2001, will use the fourth edition unless, at the time of the certifying examination, there is a certification of MMI which was made prior to October 15, 2001, and which has not previously been withdrawn through agreement of the parties or previously overturned by final decision.

The Commission evaluated various dates for the transition from the third edition to the fourth edition. The dates considered included transition based on: date of injury for the compensable injury, date of service of the examination to assign an impairment rating, and date of the initial examination to certify MMI.

Using the date of injury to determine which edition should be used to assign an impairment rating would have created a large population of injured employees who would have their impairment rating assigned using the older third edition of the Guides . This would have also resulted in a long period of time during which both the third and the fourth editions would have had to be used and would have created confusion for system participants. Because the third edition was published in 1989 (and is no longer in print) and newer editions have been released and are used in other payor systems, it has become increasingly difficult to find doctors who have and can use the third edition. This is especially true when it is necessary to have an impairment rating done by an out of state doctor. Also the legislature chose not to make the statutory amendment dependent upon date of injury. For these reasons, using the date of injury to determine which edition should be used was rejected.

Using the date of the certifying examination to determine when the fourth edition is to be used will enable a rapid transition to the fourth edition and is simple to understand. However, it is possible to have one certifying examination on a claim by a treating doctor or required medical examination doctor before the date selected for the transition and another examination on the same claim by a treating doctor, required medical examination doctor, or designated doctor after the date selected for the transition. Using the third edition for one examination then using the fourth edition for another examination on the same claim would create inconsistencies in the MMI/impairment rating process because the two impairment ratings could not be compared.

That is why the rule requires use of the fourth edition for all certifying examinations after October 15, 2001 but creates an exception if there is a certification of MMI which was made prior to October 15, 2001 and which has not previously been withdrawn through agreement of the parties or by final decision. This ensures that all ratings in a given dispute will be made according to the same edition and are thus, comparable. The exact language in the rule is different from what was proposed because a number of commenters suggested that the proposed language was difficult to follow. However, the effect of the adopted rule is largely the same as what was proposed. The chief difference is the proposed transition date of September 1, 2000 and the adopted transition date of October 15, 2001.

The date originally proposed for the transition was September 1, 2000. This date was originally selected in order to allow sufficient time to notify participants in the Texas workers' compensation system of the change from the third edition to the fourth edition. While many participants in the Texas workers' compensation system are familiar with the fourth edition, some participants will need training in the use of the fourth edition. In addition, designated doctors and Commission staff will require training in the fourth edition.

The adopted rule establishes October, 15, 2001, as the transition date. There are two major reasons for this. The first is to ensure that designated doctors have sufficient time to be trained in the fourth edition prior to assigning a rating as a designated doctor using the fourth edition. Designated doctors are required to be trained in the AMA Guides once every two years. Delaying transition to the fourth edition will minimize the number of doctors who will have to be retrained before their prior training expires.

The second reason for changing the transition date is related to the expected publication of a fifth edition of the AMA Guides . Given the fact that the fifth edition may be published at some point prior to the implementation date for the fourth edition, it may be that the Texas Labor Code will be amended during the next legislative session to allow the Commission the authority to adopt the fifth edition.

Given the concern about transition time to the fourth edition and the possibility that the statute could be changed in the next year to allow the use of the fifth edition, the transition date for use of the fourth edition was been changed to October 15, 2001. This date is far enough in the future that there will be adequate time to allow training and is also far enough in the future that if the Commission is granted the authority or mandated to use the fifth edition of the Guides (or some other impairment rating system) §130.1 can be amended prior to October 15, 2001, thus preventing transition to the fourth edition. In the absence of Commission action through rulemaking before this date, the transition to the fourth edition will occur on October 15, 2001.

New subsection (c) also clarifies that only impairment ratings certified using the appropriate edition of the Guides will be considered in a dispute.

New subsection (d) focuses on reporting and requires the completion of the Report of Medical Evaluation and a narrative report by a doctor certifying MMI and assigning an impairment rating. The Report of Medical Evaluation must be signed by the certifying doctor. Subsection (d) also lists the information which must be included in the narrative information, sets out who the report must be sent to, and sets out when the report must be sent. Information required to be included in the narrative report is summarized from the Guides themselves. Electronic transmission or facsimile transmission are the preferred methods of transmitting the report because these methods allow for faster receipt of the information, easier confirmation of successful transmission, and tend to reduce paper usage. Subsection (c)(3)(B) was revised from the proposal to be consistent with other Commission rules that allow for the use of other verifiable means of transmission when a facsimile number or email address is not available.

New section (e) clarifies the documentation maintenance requirements for doctors who certify maximum medical improvement and assign impairment ratings. The previous rule did not clearly require doctors to maintain sufficient documentation to allow the Commission to readily determine compliance with the rule, particularly the filing requirement. The new subsection provides specific record-keeping requirements which will encourage compliance with medical evaluation and reporting requirements and simplify dispute resolution. In addition, because of the rule's emphasis on use of facsimile and electronic transmission, this subsection requires the certifying doctor to maintain the original copy of the report. This will ensure that if needed for dispute resolution, the original copy of the report will be available and readily located. Under the previous rule the original copy could have been sent to the carrier, claimant, or Commission.

In drafting new §130.1, the Commission conducted research for informational research studies regarding the impact of various editions of impairment guides. In addition, the Commission received input from a wide variety of sources, including input from two of the authors of the fourth edition and licensed medical members of the Commission's Medical Advisory Committee. The various sources related anecdotal personal experiences in using various editions of the impairment guides; however, they were not able to provide studies to document the affect of the change from third edition to the fourth edition.

According to information from the American Medical Association, three states, Alaska, Maine, and Pennsylvania changed from a third edition to the fourth edition. Nevada changed from the second edition to the fourth edition. The workers' compensation agency in each of the four states was contacted. All four state agencies stated that there was no increased cost to the workers' compensation system participants due to the change.

Participants in the Texas workers' compensation system will benefit by using a more widely used standard for evaluation of permanent impairment than the third edition. The fourth edition is the required publication used by major healthcare systems such as The U.S. Department of Labor for federal workers' compensation claims, the Social Security Administration, the U.S. Department of Veterans Affairs and maritime agencies and organizations subject to the Jones Act for workers' compensation. The third edition is currently used only by participants in the Texas workers' compensation system.

Participants in the Texas workers' compensation system will benefit from the changes that provide clarification of who can certify MMI and provide clarification of the MMI and impairment rating process. In addition participants will benefit from the changes that clarify reporting, mailing, and documenting requirements. These clarifications should provide system participants with a better understanding of their responsibilities and therefore, medical evaluations and reporting requirements should be performed and reported more timely and with greater consistency.

In the absence of research studies regarding the impact of the change from the third edition to the fourth edition, it is difficult to quantify the impact of the change on injured employees.

The difference in impairment rating methodology may cause variations in individual impairment ratings. Some injuries may experience variations in impairment rating based on individual circumstances. Some injuries may receive a higher impairment rating; while other injuries may receive a lower impairment rating. Overall, the system should benefit from the increased consistency among impairment ratings assessed using the fourth edition. In addition, the increased consistency which these guides provide may result in fewer disputes of impairment ratings because there should be less likelihood of a designated doctor assigning an impairment rating that is significantly different that the one that was disputed.

Health care providers will benefit from the change to the fourth edition by having a publication for assessing impairment of injured employees that is common with most major health care systems. Having fewer impairment rating methods to learn should increase the accuracy of impairment ratings, while decreasing errors.

Insurance carriers will benefit from the instructions that are clarified in new §130.1. Clear instructions regarding the MMI and impairment rating standards will allow insurance carriers to process claims more quickly and pay claims more accurately.

In the absence of research studies regarding the impact of the change from the third edition to the fourth edition, the impact of the change on employers cannot be quantified. However, based on the anecdotal experiences of other state which have changed from the third edition to the fourth edition, the change is not expected to impact workers' compensation insurance premiums.

Comments neither specifically supporting or opposing, but suggesting changes to the proposed amendments to §130.1 were received from the following groups: Scott & White Department of Occupational and Environmental Medicine; Scott & White Clinic; Texas Workers' Compensation Insurance Fund; Flahive, Ogden & Latson; and the League of United Latin American Citizens (LULAC). Comments suggesting that the Commission wait to see if authority to use the 5th edition of the Guides will be given to the Commission at a later date and therefore opposing adoption of the rule as originally proposed were received from Texas Medical Association and The Medical Equation.

Summaries of the comments and Commission responses are as follows:

COMMENT: Commenter stated in toto: "need rules in place (law)."

RESPONSE: The Commission agrees that these rules are needed and that they meet statutory requirements and objectives.

COMMENT: Commenter felt a significant number of impairment ratings are incorrect and that the implementation of a new guide, would increase disputes and adversely affect benefits to the injured worker. However, the commenter also suggested that using the fourth edition of the Guides would benefit the injured worker.

RESPONSE: The Commission disagrees. The fourth edition is adopted, in part, because it is the current edition and reflects the most recent, up-to-date guidance by the AMA for rating impairment. In addition, the third edition is no longer in print which makes it increasingly difficult to obtain. Additional reasons are noted elsewhere in the preamble.

Regarding the suggestion that adopting the fourth edition of the guides will increase disputes, the goal of accurate impairment ratings should not be abandoned because of possible increases in disputes. Currently the Commission doesn't know what the long term effect of adopting the fourth edition will be. Although disputes could increase at the beginning of the transition, it is expected that over time the clarifications in the new rule and the simplification of not having to use an edition of the Guides not used in any other system will reduce disputes. For example, some of the current disputes appear to be caused by mistakes made by doctors who are using both versions of the Guides and may inadvertently utilize the features from the inappropriate version of the Guides . Therefore, if doctors have only one edition this may decrease the inconsistencies and decrease the need for some disputes.

Regarding the impact that the difference in impairment rating methodology would have on ratings, the differences might cause variations on individual impairment ratings. Some injuries might be rated higher in the fourth edition rather than the third while other injuries might be rated lower. Overall the system should benefit from the increased consistency and accuracy among impairment ratings assessed using the fourth edition. At issue is the accuracy of the impairment rating, not its effect on benefits.

COMMENT: Commenter suggested requiring designated doctors to pass a written test.

RESPONSE: The Commission agrees. Section 126.10 currently requires doctors to pass a written test by a specified timeframe in order to be on the Designated Doctor List. To date, the Commission has not set that timeframe.

COMMENT: Commenter pointed out that there is no conversion chart from lower extremity to whole person. (a.k.a. Table 42 in the third edition) and asked how this would be resolved?

RESPONSE: The Commission disagrees. The tables in Sec. 3.2 of the fourth edition, regarding the lower extremity, show the impairment percentage of the whole person, the lower extremity and the specific part together. The whole person impairments are listed, next the lower-limb impairments are in parenthesis and the specific part impairments are in brackets. It is stated in the Guides that multiplying a lower extremity by 0.4 yields the whole-person impairment percentage. Multiplying the specific-part impairment percent by 0.7 yields the lower extremity impairment percentage.

COMMENT: Commenter contended that there are difficulties with the extent of the injury. Some providers consider a low back strain to be just that, a lumbar problem. However, there are some that would make this a thoracolumbar strain, extending the injury without any justification. This would create an inflated IR based on the DRE model in the fourth edition.

RESPONSE: The Commission disagrees. This issue was also present using the third edition -- the fourth edition will not cause more of these difficulties. Although issues regarding the extent of injury can be problematic, issues of this nature are addressed by the Commission and resolved through the dispute process.

COMMENT: Commenter suggested that because all total joint replacements would be a 15% whole person impairment rating at a minimum, there is little room for a good clinical result being reflected in the IR. If the injured worker has an ordinary disease of life, i.e. degenerative joint disease; and sustains a minor contusion to the knee and the only remaining treatment is a total knee replacement, why should the employer be responsible for up to 401 weeks of benefits for what was a minor injury?

RESPONSE: The Commission disagrees. Both the third and fourth editions of the Guides provide a similar rating for a total knee replacement. The third edition does allow up to a 20% impairment for a knee replacement if in the optimum position, while the fourth edition allows 15% to 30% based on the results from good to poor. The commenter's main concern seems to relate to the issue of an impairment rating being set high due to cumulative injuries or conditions and not solely the compensable injury. However, Texas Labor Code §408.084 only allows these benefits to be reduced in proportion to the documented impairment that resulted from earlier compensable injuries.

COMMENT: Commenter contended that pain is not objectifiable and should not be the basis for any component in the IR process because there is no scale on which to judge this aspect. Commenter asked for clarification of the intent of the Commission.

RESPONSE: The Commission agrees. Although there are rare medical conditions such as trigeminal neuralgia (page 145, table 9 of the fourth edition), in which "pain" is the sole consideration for rating impairment, generally, "pain" alone is not rateable. Impairment ratings are based on objective findings and include consideration of pain. In general, pain is treated the same in the third and fourth editions. The fourth edition has a chapter on "pain" while the third edition has pain and impairment listed as Appendix B. Chapter 15 in the fourth edition titled "Pain", does discuss a variety of pain disorders and does provide examples of how "pain" can be evaluated. The examples given for evaluating pain are derived from the primary diagnosis and rated by information contained in other chapters of the book, such as causalgia, reflex sympathetic dystrophy (RSD) and entrapment neuropathy.

It should also be noted that under the third edition, six months of documented pain may result in a rating under Table 49 for spinal injuries. However, in table 75 in the fourth edition, pain must be associated with the documented injury and rigidity to be rateable.

The intent of the Commission is to adopt the fourth edition of the guides because it is the current edition and reflects the most recent, up-to-date, guidance by the AMA for rating impairment. In addition, the third edition is no longer in print, which makes it increasingly difficult to obtain. Also, in the United States, the fourth edition is the most commonly used guide for rating permanent impairment (Spieler, et al ., Journal of American Medical Association, January 26, 2000, volume 283, no 4, page 519). Additional reasons are stated elsewhere in this preamble.

COMMENT: Commenters were concerned about the time frame for transitioning to the fourth edition. Commenters were concerned about the possibility of being required to attend an additional training session if the fourth edition was adopted and implemented in the later part of 2000. Commenter suggested that a reasonable transition period for development of training and education material and programs is necessary and that a September 1, 2000, effective date might not be realistic. One commenter included a study regarding the necessity of education on the Guides .

Commenter also suggested waiting until the fifth edition of the AMA Guides is published to see if that edition will address concerns regarding the fourth edition. It was pointed out that once the fifth edition is published there may be significant differences that would require major changes to training and education when adopted. This commenter recommended that the new fifth edition be a consideration and that the fourth edition be used for a specific period of time to allow for a reasonable transition to the fifth edition should it be adopted in the future.

RESPONSE: The Commission agrees in part. There were essentially two issues raised. The first related to having an adequate period of time to ensure that doctors are trained in the fourth edition before implementing its use. The Commission agrees that it is critical to ensure that there is adequate time for doctors to become familiar in the fourth edition prior to implementing its use. This will also be the case if the Commission at some point in the future changes to another version of the guides or another impairment rating system.

Training on the fourth edition prior to performing an impairment rating using the fourth edition is preferred. Training does assist doctors performing impairment ratings. However, the Commission has not required all doctors on the approved doctor list to have training on the third edition and the changes in this rule will not require all doctors on the approved doctor list to have training on the fourth edition. The Commission is planning to increase its monitoring and study of impairment ratings in an effort to improve the accuracy of ratings.

The Commission does plan to require training for designated doctors on the appropriate edition of the Guides prior to performing a designated doctor exam for an impairment rating. This will mean that some designated doctors who have previously taken training in the third edition will have to be trained in the fourth edition less than two years after their last training. The change in implementation date from September 1, 2000, in the proposed rule to October 15, 2001, in the rule as adopted will lessen the number of designated doctors that this will effect.

The second issue raised was a suggestion that the Commission not adopt the fourth edition at this time and wait for the fifth edition to be published by the AMA. Per Texas Labor Code §408.124 the Commission was provided the authority to, by rule, adopt the fourth edition of the "Guides to the Evaluation of Permanent Impairment" published by the American Medical Association to determine the existence and degree of an injured employee's impairment. The Commission was not given the authority to adopt the fifth edition of the Guides . Furthermore, the fifth edition of the Guides has not been published at this point and there is no certainty as to when the fifth edition will be published.

However, given the fact that the fifth edition may be published at some point prior to the Commission's proposed implementation date for the fourth edition, it may be that the Texas Labor Code will be amended during the next legislative session to allow the Commission the authority to adopt the fifth edition. At the same time, there is no guarantee that the Commission will be granted that authority. The Texas Legislature went through several sessions before it chose to amend the statute to allow the use of the fourth edition.

As noted, one of the reasons for changing editions is the fact that the third edition is out of print and its non-availability has caused significant problems on many claims. Therefore, while the implementation of the fourth edition is delayed to see if the Commission will be given the authority to change to the fifth edition, delaying implementation of the fourth edition beyond the coming legislative session is not warranted if such authority is not granted through new legislation.

Given the concern about transition time to the fourth edition and the possibility that the statute could be changed to allow the use of the fifth edition, the implementation date for use of the fourth edition has been changed to October 15, 2001. This date is far enough in the future that there will be adequate time to allow training and is also far enough in the future that if the Commission is granted the authority or mandated to use the fifth edition of the Guides (or some other impairment rating system) §130.1 can be amended at the Commission's discretion, prior to October 15, 2001, thus preventing implementation of the fourth edition. In the absence of Commission action through rulemaking before this date, the conversion to the fourth edition will occur on October 15, 2001.

COMMENT: Commenter contended that the rule is unclear regarding when the third or fourth edition should be used. Commenter contended that the phrase "that is upheld if disputed" could cause confusion regarding which edition to use if a dispute arises because the party disputing the rating or date of MMI has the option under the statute and current rules of disputing the date of MMI, the IR, or both. The commenter suggested that proposed subsection (b)(5) is not consistent with proposed (c)(2)(E). Another commentor suggested that proposed (b)(5) be moved to subsection (c)(2) as a new subsection (F) because subsection (b) concerns the certification of MMI and subsection (b)(5) addresses the impairment rating assignments which subsection (c) of the rule more fully addresses.

Another comment suggested that proposed section (c)(2)(D)(ii) was ambiguous because it is in passive voice and does not state who will later determine that the injured employee was not at MMI at the time the IR was assigned.

RESPONSE: The Commission agrees that the language regarding transition could be clarified and has changed the language in the rule. The intent of the language was to ensure that in the event of a dispute, all impairment ratings being reviewed would be assigned using the same guides because comparing ratings assigned under different guides would be problematic. The rule has been changed by deleting (b)(5) and changing (c)(2) to the following:

(2) A doctor who certifies that an injured employee has reached MMI shall assign an impairment rating for the current compensable injury using the rating criteria contained in the appropriate edition of the AMA Guides to the Evaluation of Permanent Impairment, published by the American Medical Association (AMA Guides).

(A) The appropriate edition of the AMA Guides to use for all certifying examinations conducted before October 15, 2001 is the third edition, second printing, dated February, 1989.

(B) The appropriate edition of the AMA Guides to use for certifying examinations conducted on or after October 15, 2001 is:

(i) the fourth edition of the AMA Guides (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the AMA prior to May 16, 2000). If a subsequent printing(s) of the fourth edition of the AMA Guides occurs, and it contains no substantive changes from the previous printing, the Commission by vote at a public meeting may authorize the use of the subsequent printing(s); or

(ii) the third edition, second printing, dated February, 1989 if, at the time of the certifying examination, there is a certification of MMI by a doctor pursuant to subsection (b) of this section made prior to October 15, 2001 which has not been previously withdrawn through agreement of the parties or previously overturned by a final decision.

(C) This subsection shall be implemented to ensure that in the event of an impairment rating dispute, only ratings using the appropriate edition of the AMA Guides shall be considered.

COMMENT: Several commenters were concerned that the term "hands-on" in proposed subsection (b)(4)(B) is imprecise and prohibits the use of telemedicine. One commenter on this section also expressed concern that the requirement in proposed section §130.1(b) that the doctor who certifies MMI has been reached must perform a complete hands-on examination seems to be in conflict with the intent of Texas Labor Code §408.102(b) and its supporting TWCC rule, §30.4(g). The commenter believed the doctor would have the option to certify MMI based on lack of medical improvement or a failure to attend health care appointments and that to arrange an exam within 7 days would be impractical. The commenter suggested revising this language to read as follows:

"perform a complete in person medical examination of the injured employee for the explicit purpose of determination of MMI (certifying examination)(this requirement does not apply to a doctor who is required by §130.4 to complete a Medical Evaluation Report in response to a medical status letter from the Commission.);"

RESPONSE: The Commission agrees in part. The purpose of this section was to ensure that an actual medical examination of the employee was done when certifying MMI and assigning an impairment rating and not merely a review of only the medical records. It is not the Commission's intent to preclude use of telemedicine in certifying MMI and assigning impairment ratings.

When an examination for the purpose of assigning an impairment rating is being performed with the aid of telemedicine, a health care provider must still perform the physical examination of the injured employee necessary to complete an impairment rating. In order to remove confusion on this point, the subsection has been reworded to the following:

(b)(4)(B) perform a complete medical examination of the employee for the explicit purpose of determining MMI (certifying examination);

The Commission disagrees with the suggestion that §130.1(b) conflicts with §130.4 by requiring a medical examination of the employee before certifying maximum medical improvement. A certifying doctor who completes the Report of Medical Evaluation must perform the examination necessary to appropriately complete the report. If the injured employee has abandoned care and performing the examination cannot be performed, the Report of Medical Evaluation cannot be completed. However, the doctor may request an Required Medical Examination requiring the injured employee to attend an examination for the purpose of assessing MMI and assigning an impairment if MMI has been reached. The commenter is correct that under §130.4, treating doctors are required to complete a Report of Medical Evaluation within seven days of its receipt. However, the doctors are instructed by letter that they must examine the employee to perform the assessment. Therefore, the change in §130.1 merely clarifies the requirements of §130.4 and does not represent a change from what is currently expected.

COMMENT: Commenter suggested deletion of the reference to §130.1(b)(1) and deletion of the definition of maximum medical improvement (MMI) in section (b)(2)(A)(B) and (C). Commenter suggested that the Labor Code be referenced instead.

RESPONSE: The Commission disagrees that the definition of MMI should be deleted. Although the definition is in the Texas Labor Code, placing the definition in this rule allows all parties utilizing this rule to have the necessary information readily available.

COMMENT: Commenter contended that the rule appears to create a huge exception in Rule §130.5(e) that should more properly be placed in that rule. The issues of MMI and IR are "inextricably intertwined," and if the IR should be disputed within 90-days or become final, then the MMI date should likewise be disputed in a similar time frame.

RESPONSE: The Commission disagrees. This comment was made prior to recent amendments to §130.5 which make the commenter's point moot. As recently amended, rule §130.5 applies a finality to MMI and the impairment rating. Had §130.5 not been amended, the commenter would have been correct. However, the Commission agrees a time frame needed to be set to dispute and the intention of the Commission has been clarified in §130.5 by not allowing the impairment rating to stand if the MMI date was successfully disputed. Section §130.5 clarified that the first impairment rating and certification of MMI are final if not disputed within 90 days, unless one of the three exceptions listed in that rule applies.

COMMENT: Commenter suggested that there should be an outside time frame for making a determination of whether the claimant was actually at MMI at the time of the first assignment of IR, with no presumption attaching to the first date certified. A party should not be allowed to revisit an IR that was assigned, for example, prior to statutory MMI based upon a change in condition that occurs after statutory MMI (i.e., post-statutory MMI surgery).

RESPONSE: This is addressed in a separate rule, §130.5. However, the Commission agrees a time frame needed to be set to dispute and the intention of the Commission has been clarified in §130.5 by not allowing the impairment rating to stand if the MMI date was successfully disputed. Section §130.5 clarified that the first impairment rating and certification of MMI are final if not disputed within 90 days, unless one of the three exceptions listed in that rule applies.

COMMENT: Commenter recommended clarifying in the rule that apportionment of previous injuries or condition is different in the third and fourth editions of the Guides .

RESPONSE: The Commission disagrees. Both the third and fourth editions discuss apportionment; however, the fourth edition does contain wording that directs the rater to estimate the preexisting impairment and subtract that impairment from the present impairment. However, that information is clarified and conditioned in a previous paragraph that states if "apportionment" is needed. "Apportionment" is not specifically addressed in the Act. Section 408.084(a) provides that at the request of the carrier, the Commission may order impairment income benefits and supplemental income benefits reduced " in a proportion equal to the proportion of a documented impairment that resulted from earlier compensable injuries." The carrier has the burden of proving an entitlement. Apportionment has been addressed primarily as a training issue and as a part of the dispute resolution process regarding the issue of contribution.

COMMENT: Commenter contended that failure to complete and submit reports and documentation should not effect certification of MMI. Commenter suggested deletion of (b)(D) (they appear to be referring to (b)(4)(D)) and amendment of (d)(1) to state, "A doctor who certifies maximum medical improvement and assigns an impairment rating for the current compensable injury shall complete, sign and submit a Report of Medical evaluation and a narrative report."

RESPONSE: The Commission disagrees. The purpose of this is to notify the affected parties when a certifying examination assessing MMI has been reached and an impairment rating has been assigned. All parties identified must be notified per the rule when an injured employee has reached MMI and an impairment rating has been assigned, or the MMI date and impairment rating may not be considered certified. Because there is a deadline for disputing MMI & impairment rating, all parties must be notified appropriately as specified in subsection (d) of the rule. As written, the rule does not void a certification of MMI or an impairment rating simply because the doctor did not timely file the report.

STAFF COMMENT: Since §130.1 was proposed, language relating to the use of facsimile and electronic transmission for sending reports has been standardized and subsection (d)(3)(B) of this rule has been changed to the following to be consistent with this standard language:

(d)(3)(B) The Report of Medical Evaluation shall be filed with the Commission, the employee and the employee's representative by facsimile or electronic transmission if the doctor has been provided the recipient's facsimile number or email address; otherwise, the report shall be filed by other verifiable means.

STAFF COMMENT: It was also noted that the proposed rule did not conform to the Commission's current writing style regarding use of the terms "injured employee" and "insurance carrier." When these terms are used in rules, the preferred convention is to use the full term the first time it appears in the rule with the abbreviated version placed parenthetically after the term and then using the abbreviated term thereafter. Therefore the rule was changed to reflect this.

Subchapter A. IMPAIRMENT INCOME BENEFITS

28 TAC §130.1

Repeal of previous §130.1 is adopted under the following statues: Texas Labor Code, §§401.011(17), 401.011(30), 408.102, 408.124, 402.061, 401.024, 402.042, 408.025, 408.004, 408.122, 408.123, 408.125, and 406.010.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 18, 2000.

TRD-200003480

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Effective date: June 7, 2000

Proposal publication date: November 19, 1999

For further information, please call: (512) 804-4286

New rule, §130.1 is adopted under the following statutes: Texas Labor Code, §401.011(17), which provides a definition for "doctor"; Texas Labor Code, §401.011(30), which provides a definition for "maximum medical improvement"; Texas Labor Code, §408.102, which provides that temporary income benefits continue until the injured employee reaches maximum medical improvement; Texas Labor Code, §408.124, as amended by the 76th Texas Legislature, which provides the Commission the authority to by rule adopt the fourth edition of the "Guides to the Evaluation of Permanent Impairment" published by the American Medical Association to determine the existence and degree of an injured employee's impairment; Texas Labor Code, §402.061, which authorizes the Commission to adopt rules necessary to administer the Act; Texas Labor Code, §401.024, as amended by the 76th Texas Legislature, which provides the Commission the authority to require use of facsimile or other electronic means to transmit information in the system; Texas Labor Code, §402.042, which authorizes the Executive Director to enter orders as authorized by the statute as well as to prescribe the form and manner and procedure for transmission of information to the Commission; Texas Labor Code, §408.025, which requires the Commission to specify by rule what reports a health care provider is required to file; Texas Labor Code, §408.004, which addresses required medical examinations; Texas Labor Code, §408.122, which establishes eligibility for impairment income benefits and provides for the use of designated doctors when a dispute exists regarding the certification of MMI; Texas Labor Code, §408.123, which requires a doctor certifying MMI to file a report and which requires a certification of MMI and assignment of an impairment rating by a doctor other than the treating doctor be sent to the treating doctor who must indicate either agreement or disagreement with the certification of the evaluation; Texas Labor Code, §408.125, which addresses use of a designated doctor to resolve impairment rating disputes; Texas Labor Code, §406.010, which authorizes the Commission to adopt rules regarding claims service.

New §130.1 is adopted under the following statutes: Texas Labor Code, §§401.011(17), 401.011(30), 408.102, 408.124, 402.061, 401.024, 402.042, 408.025, 408.004, 408.122, 408.123, 408.125, and 406.010.

§130.1. Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment.

(a)

Certifying Doctor. Maximum medical improvement (MMI) shall be determined and certified by a doctor as defined in §401.011 (17) of the Texas Workers' Compensation Act.

(b)

Certification of Maximum Medical Improvement.

(1)

Maximum medical improvement (MMI) is:

(A)

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;

(B)

the expiration of 104 weeks from the date on which income benefits begin to accrue; or

(C)

the date determined as provided by Texas Labor Code §408.104.

(2)

MMI must be certified before an impairment rating is assigned.

(3)

Certification of MMI is a finding made by a doctor that an injured employee (employee) has reached MMI as defined in subsection (b)(1) of this section.

(4)

To certify MMI the certifying doctor shall:

(A)

review medical records;

(B)

perform a complete medical examination of the employee for the explicit purpose of determining MMI (certifying examination);

(C)

assign a specific date at which MMI was reached.

(i)

The date of MMI may not be prospective or conditional.

(ii)

The date of MMI may be retrospective or the date of the certifying exam; and

(D)

complete and submit required reports and documentation.

(c)

Assignment of Impairment Rating.

(1)

An impairment rating is the percentage of permanent impairment of the whole body resulting from the current compensable injury. A zero percent impairment may be a valid rating.

(2)

A doctor who certifies that an employee has reached MMI shall assign an impairment rating for the current compensable injury using the rating criteria contained in the appropriate edition of the AMA Guides to the Evaluation of Permanent Impairment, published by the American Medical Association (AMA Guides).

(A)

The appropriate edition of the AMA Guides to use for all certifying examinations conducted before October 15, 2001 is the third edition, second printing, dated February, 1989.

(B)

The appropriate edition of the AMA Guides to use for certifying examinations conducted on or after October 15, 2001 is:

(i)

the fourth edition of the AMA Guides (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the AMA prior to May 16, 2000). If a subsequent printing(s) of the fourth edition of the AMA Guides occurs, and it contains no substantive changes from the previous printing, the Commission by vote at a public meeting may authorize the use of the subsequent printing(s).; or

(ii)

the third edition, second printing, dated February, 1989 if, at the time of the certifying examination, there is a certification of MMI by a doctor pursuant to subsection (b) of this section made prior to October 15, 2001 which has not been previously withdrawn through agreement of the parties or previously overturned by a final decision.

(C)

This subsection shall be implemented to ensure that in the event of an impairment rating dispute, only ratings using the appropriate edition of the AMA Guides shall be considered.

(3)

Assignment of an impairment rating for the current compensable injury must be based on the employee's medical record and the certifying examination. The doctor assigning the impairment rating shall:

(A)

identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

(B)

document specific laboratory or clinical findings of an impairment;

(C)

analyze specific clinical and laboratory findings of an impairment;

(D)

compare the results of the analysis with the impairment criteria and provide the following:

(i)

A description and explanation of specific clinical findings related to each impairment, including zero percent (0%) impairment ratings, and

(ii)

A description of how the findings relate to and compare with the criteria described in the applicable chapter of the AMA Guides. The doctor's inability to obtain required measurements must be explained.

(E)

assign one whole body impairment rating for the current compensable injury.

(F)

be responsible for referring the employee to another doctor or health care provider for testing, or evaluation, if additional medical information is required. The certifying doctor is responsible for incorporating all additional information obtained into the report required by this rule:

(i)

Additional information must be documented and incorporated into the impairment rating and acknowledged in the required report.

(ii)

If the additional information is not consistent with the clinical findings of the certifying doctor, then the documentation must clearly explain why the information is not being used as part of the impairment rating.

(d)

Reporting.

(1)

Certification of MMI and assignment of an impairment rating for the current compensable injury requires completion, signing, and submission of the Report of Medical Evaluation and a narrative report.

(A)

The Report of Medical Evaluation must be signed by the certifying doctor. The certifying doctor may use a rubber stamp signature or an electronic facsimile signature of the certifying doctor's personal signature.

(B)

The Report of Medical Evaluation includes an attached narrative report. The narrative report must include the following:

(i)

date of the certifying examination;

(ii)

date of MMI;

(iii)

findings of the certifying examination, including both normal and abnormal findings related to the compensable injury and an explanation of the analysis performed to find whether MMI was reached;

(iv)

narrative history of the medical condition that outlines the course of the injury and correlates the injury to the medical treatment;

(v)

current clinical status;

(vi)

diagnosis and clinical findings of permanent impairment as stated in subsection (c)(3); and

(vii)

the edition of the AMA Guides that was used in assigning the impairment rating.

(2)

A Report of Medical Evaluation under this rule shall be filed with the Commission, employee, employee's representative, and the insurance carrier (carrier) no later than the seventh working day after the later of :

(A)

date of the certifying examination; or

(B)

the receipt of all of the medical information required by this section.

(3)

The report required to be filed under this section shall be filed as follows:

(A)

The Report of Medical Evaluation shall be filed with the carrier by facsimile or electronic transmission; and

(B)

The Report of Medical Evaluation shall be filed with the Commission, the employee and the employee's representative by facsimile or electronic transmission if the doctor has been provided the recipient's facsimile number or email address; otherwise, the report shall be filed by other verifiable means.

(e)

Documentation. The certifying doctor shall maintain the original copy of the Report of Medical Evaluation and narrative as well as documentation of:

(1)

the date of the examination;

(2)

the date any medical records necessary to make the certification of MMI were received, and from whom the medical records were received; and

(3)

the date, addressees, and means of delivery that reports required under this section were transmitted or mailed by the certifying doctor.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 18, 2000.

TRD-200003481

Susan Cory

General Counsel

Texas Workers' Compensation Commission

Effective date: June 7, 2000

Proposal publication date: November 19, 1999

For further information, please call: (512) 804-4286