Alternative Impairment Ratings (AIRs)

As of September 1, 2011 Sections 408.0041(f-2) and 408.004l(h) of the Texas Labor Code require the workers' compensation insurance company to pay for treating doctor or referral doctor alternative examinations to certify maximum medical improvement (MMI) and impairment rating (IR) when MMI and IR have first been certified by a designated doctor and the injured employee disagrees with the Designated Doctor's opinion.

In the Worker’s Compensation system in Texas, after you get hurt you will normally receive temporary income benefits (TIBs) if you are partially or wholly unable to work. These benefits will continue so long as you remain off of work and until you reach clinical or statutory maximum medical improvement (MMI). However, when a doctor certifies you have reached maximum medical improvement, the insurance company is authorized to suspend temporary income benefits and initiate impairment income benefits (IIBs) for a specified period, three weeks for every percentage assigned. You may disagree with the rating you have been given, or you may think it was given prematurely and you were not at your maximum medical improvement yet. In such a situation it is necessary to obtain an alternate certification (AIR) in order to challenge this benefits decision.

An alternate certification is a certification of maximum medical improvement and impairment rating, or certification that one has not reached maximum medical improvement, given by a doctor. Often the first certification at maximum medical improvement an impairment rating will be given by a Designated Doctor. A Designated Doctor is a doctor who is chosen at random off a list of qualified, certified and authorized doctors by the Texas Department of insurance (TDI), Division of Worker’s Compensation (DWC). That state Designated Doctor has presumptive weight, which is a fancy legal way of saying that doctor’s opinions and conclusions are binding and presumed correct unless and until it is overturned by a judge due to evidence.

As if that were not enough, the doctor performing the alternative impairment rating must be chosen carefully. Choosing the wrong doctor will mean that you might get another opinion that goes against you and makes your case even more difficult, if not impossible, to win.

Other considerations include that the certifying doctor must perform include evaluating all of the medical conditions (accepted or compensable) that are part of the injury. If the certifying doctor gives you an impairment rating but does not include all conditions that are part of the injury or includes conditions that are not part of the injury, a judge will determine that certification cannot be adopted. Therefore, it is important for the doctor performing the alternative impairment rating to verify which conditions are accepted and others that are disputed.

It is also crucial to make sure the certifying doctor has all of the relevant medical records. If the doctor does not have all of the records, that may impact the validity and foundation of the doctor’s opinion. If the doctor does not have all of the medical records and review those records, this may lead to inaccurate or false conclusions and prove fatal to the doctor’s analysis and conclusions. So, it is critical to make sure that the doctor performing the alternative impairment rating receives all relevant medical information. Otherwise, the doctor’s opinion may lack foundation, evidence and accuracy and be excluded from consideration and adoption by a judge.

Some of this may not apply to all alternate certification situations. For example, if you have not reached the two-year statutory maximum medical improvement date it is valid and proper for a doctor to opine that you have not reached your maximum medical improvement. A doctor to give the opinion that you have not reached maximum medical improvement does not have to be certified to give such an opinion and does not have to be a referral for that specific purpose. However, a doctor with that opinion does need to do a few things. The doctor needs to state the reasons and explanations as to why the patient has not reached maximum medical improvement. Simply giving the conclusion is not enough. Further, the doctor must anticipate the approximate time frame and conditions it will take to reach maximum medical improvement. This can either take the form of a date specific or a statement that the patient will not be at maximum medical improvement until specific necessary treatment under the treatment guidelines are performed. Please note the critical nature of explaining what those procedures would be and why they are necessary under the treatment guidelines.

If you and your Treating Doctor agree to have an alternative impairment rating performed to dispute a Designated Doctor’s evaluation, this must be disputed within 90 days from the date that you, the patient, receive the Designated Doctor’s report. If you have not received this report within 2-3 weeks of the date of the evaluation, you need to contact the Designated Doctor and make sure that they send you a report and you should document all of this and the person(s) you spoke with about this issue. It is your responsibility to make sure that you have received all of the documentation and forms of your Designated Doctor evaluation.

After the alternative rating is performed, the next step is going to a Benefit Review Hearing (BRH). Although the patient can represent themselves, it is highly advisable that they have an Ombudsman from the Office of Injured Employee Council (OIEC) or an attorney familiar with the workers compensation system assist or represent them for the hearing. The Workers Compensation System is extremely complicated and legalistic and insurance companies frequently hire attorneys to represent them and it would be wise for patients to do the same as their medical and income benefits are at stake.

TDI-DWC Rule 130.12 allows for two ways to dispute an impairment rating, if the rating is given by a Designated Doctor, the rule requires that the party disputing the rating must file a request for a Benefit Review Conference (BRC). Oftentimes, it is difficult to determine whether the rating was given by a designated doctor (a state-appointed doctor) or some other physician, such as a treating doctor or an insurance company- appointed doctor. Therefore, it is recommended that all impairment ratings be disputed by filing a form DWC-45 with TDI-DWC. You should indicate what the impairment rating is that you are disputing and name of the doctor that certified the rating.

Sometimes an alternative impairment rating requests for a causation letter or analysis to be performed to determine if certain body areas and conditions which is referred to as extent of injury (EXT). This is separate process and service from an alternative impairment rating and should be evaluated carefully by the Treating Doctor to support such a request.