Texas: SORM v Rodriguez 08-10-00278

   By Stuart D. Colburn, Esq., Shareholder, Downs Stanford

This case addresses when a DWC-69 is required after a change in an impairment rating (IR) due to a mathematical error. State Office of Risk Mgmt. v. Rodriguez, 2011 Tex. App. LEXIS 6839 (Tex. App. El Paso Aug. 26, 2011).

The Appeals Panel (AP) found none of the three (3) DWC-69 were valid. The AP criticized the designated doctor's (DD) 5% certification for failing to provide a basis or explanation. The AP found the treating doctor's (TD) 25% IR contained at least a mathematical error and should be 23%. The DD corrected his certification in response to a Letter of Certification (LOC) by providing a basis for his opinions. The TD submitted a new report, changing the IR to 23% as suggested by the AP but did not complete a DWC-69.

SORM filed a plea to the jurisdiction arguing the trial court had no issue before them they could resolve because there was only one valid IR, arguing the TD did not draft a new DWC-69 and thus no valid IR. The court of appeals disagreed believing whether an amended report from the TD is a mathematical correction not requiring a new DWC-69 or a new IR requiring a new report was an issue the court could determine.

The court stated, "Where one of the IRs presented before the Division contains a clear mathematical error, the fact finder is free to correct the minor clerical error and choose between the corrected IR and any other IRs presented." They contrasted a mathematical correction IR from a new IR which would require a new report. The trial court retains jurisdiction over this dispute and thus the plea to the jurisdiction.

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