The ninety day rule in Texas workers’ compensation cases is one of the most dangerous rules we have in the comp system. It almost always works against the injured worker. So, it is not only dangerous, but designed to inflict serious harm to the most unsuspecting participant in a claim. It’s purpose is to end your claim without you even knowing what happened.
What Is The Ninety Day Rule?
The ninety day rule comes from Division of Workers’ Compensation Rule 130.12. It states that the first valid impairment rating given to an injured worker becomes FINAL if it is not disputed within ninety days of delivery of written notice through verifiable means. To be clear, the deadline to file a dispute of an impairment rating is ninety days from the date you receive a copy of it. In order for the insurance company to allege that your impairment rating became final, it has to prove that you received a copy of the report. That’s why the adjuster will usually mail a copy to you by certified mail.
What Is A Valid Impairment Rating?
People are routinely shocked at what constitutes a valid impairment rating. The only requirements are:
- Form DWC-69 must be used;
- The maximum medical improvement date cannot be a future date;
- There must be an assignment of either no impairment or a percentage of impairment;
- The certifying doctor has to sign the form; and,
- The certifying doctor has to be authorized by the Division to do impairment ratings.
That’s it. A doctor has to use the right form, write the MMI date and impairment on it and sign it. That’s all. It doesn’t have to be right. Get this – It doesn’t have to have all of your injuries in it either. And, It can even have too many injuries included in it, and it still counts.
The workers’ comp statute and the rules include many other elements of a valid impairment rating that I discussed in an article published by Lexis Nexis years ago. But, the Division issued a rule that said none of that matters when it comes to kicking you to the curb. All that matters is that the doctor filled in the blanks on the form and signed it.
How Do I Dispute An Impairment Rating?
There are two ways to dispute an impairment rating and avoid the ninety day rule. One way works some of the time. The second way works every time. The first way is to request a designated doctor and indicate that you are disputing an impairment rating. This satisfies the ninety day rule, but only if you have never seen a designated doctor before. Otherwise, you can request a designated doctor, but it will not count as a dispute.
The second way to dispute an impairment rating in Texas is to request a Benefit Review Conference (BRC). This way works every time, and is the recommended method to file a dispute. A BRC is a conference between you and the insurance company in an effort to work out any disputes between you. If your impairment rating was premature, you aren’t ready for a BRC yet. But, if that’s what the law requires, that’s what you do.
What Does It Mean If My Impairment Rating Becomes Final?
When your impairment rating becomes final because of the ninety day rule, you get stuck with whatever it is. It doesn’t matter that you haven’t finished treating or that you need surgery. It doesn’t matter that you can’t go back to work yet. The Division doesn’t care if you didn’t know about the deadline. The insurance company knows about the deadline. It processes thousands of claims and has professionals overseeing all of its activities. And they expect you to be as sophisticated as these big insurance companies.
When an impairment rating becomes final, your ability to get temporary income benefits ends. Your impairment rating will probably be too low to get you any more benefits at all. There’s no reason why an insurance company would try to make a high impairment rating become final – that doesn’t help them. The Division wrote the ninety day rule to help insurance companies and to hurt injured workers.
The bottom line is that the Division wants your case to end as fast as possible. This is one way to make that happen very quickly. If you are given an impairment rating that you think is wrong, or premature, then request a BRC immediately and protect yourself. Contact a Texas workers’ compensation attorney right away to help you. It might cost some money to hire a lawyer, but at least they can protect you from the efforts of the Division and the insurance companies to take it all away. And, they know all of the exceptions to the rule.
