STATE OFFICE OF RISK MANAGEMENT vs. RUBEN C. RAMIREZ
Not Reported, 2010 Tex. App. LEXIS 4956 (Tex.App.-San Antonio, 2010) –Unreliable Medical Report
Mr. Ramirez sustained a compensable injury in the course and scope of his employment on March 10, 1999. He underwent surgery to his lumbar spine at L5/S1on September 17, 1998. The treating surgeon then certified maximum medical improvement (MMI) on April 5, 1999 with an 8% impairment rating based upon the AMA Guides Third Edition, Second Printing. The claimant returned back to work. The claimant’s date of statutory maximum medical improvement would have been on June 27, 2000.
In 2005, the Claimant began having problems at the L4/5 level. He underwent a second surgery at the L4-L5 level. The Claimant then requested a designated doctor for a review of the earlier certification. The designated doctor awarded a 22% impairment rating based largely on range of motion as of January 8, 2007. The designated doctor found the date of MMI as the statutory date of June 27, 2000. SORM requested a letter of clarification. In response to the letter of clarification, the designated doctor revealed he did not have a copy of the treating surgeon’s certification of maximum medical improvement of 8%, and maintained the 22% impairment rating as calculated by his range of motion in 2007.
The case proceeded through a Contested Case Hearing, the Appeals Panel, and district court with findings in favor of the designated doctor’s report of MMI and the 22% impairment rating. The matter was taken to the Court of Appeals. Throughout the progress of the case, SORM challenged the designated doctor’s certification arguing that the range of motion loss was based on the second surgery, which occurred after the statutory MMI date and was performed over 6 years after the statutory date. Of MMI The argument was that the doctor must rate the Claimant’s condition as of the date of MMI.
The Court of Appeals noted the designated doctor did not have the treating surgeon’s April 1999 report and he did not know whether the 2005 surgery did or did not contribute to the loss of range of motion. The treating surgeon’s impairment rating did consider the loss of range of motion based on the straight leg raising validation; however the designated doctor did not consider this evidence in rendering the 22% impairment rating. Therefore, the designated doctor’s report was held as unreliable. The Court writes, “However, because [the designated doctor]’s findings were unreliable and should not have been considered by the jury, the jury would have had no choice, but to adopt [the treating doctor] clinical MMI date and impairment rating. The Court reversed and rendered a decision that the date of MMI was April 5, 1999 and the impairment rating is 8%.
By Stuart D. Colburn, Downs Stanford P.C. Reprinted with permission.