FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON DIVISION INVESTIGATING VOLUNTARY AND INFORMAL NETWORK VIOLATIONS A PRIVILEGED ATTORNEY—CLIENT COMMUNICATION BY FLAHIVE, OGDEN & LATSON ADVISORY NO. 483: The Texas legislature abol- ished all voluntary or informal networks except for the provision of pharmaceuticals through pharmacy benefit managers, effective January 1, 2011. See §413.0115 of the Texas Labor Code and Division Rules 133.4 and 133.5. Thus, except for PBMs, a carrier may not make a medical benefit payment below the Medical Fee Guidelines, unless the claim is a part of a certified health care network. Fla- hive, Ogden & Latson has learned that the Division is cur- rently conducting an investigation into whether some sys- tem participants may have entered into post-January 1, 2011 contracts with non-pharmacy benefit vendors that may constitute voluntary or informal networks. Specifically, our firm has learned that the Division has requested that some system participants produce docu- mentation in conjunction with a complaint that it has re- ceived against an entity that allegedly sought to enter into contractual fee relationships with a number of carriers and physical therapy companies. Reportedly, the company under investigation sought to convince some physical therapy providers to discount their services below the Medical Fee Guidelines. The company then allegedly sought to contract with various carriers or third party administrators to facilitate payment for physical therapy services at a rate that was less than the Medical Fee Guidelines. According to the Division, in some cases, the carriers were paying for services at a rate less than the Medical Fee Guidelines. In other cases, according to the Divi- sion, carriers were promised a refund from the vendor. The Division’s current investigation is to ensure that entities are not engaging in voluntary or informal net- works in the provision of physical therapy services. Carriers, third party administrators, and other system participants may not contract to compensate health care providers for non-pharmacy benefits at rates be- low the Medical Fee Guidelines in the absence of a certified health care network contract. Carriers should ensure that their key staff members, third party admin- istrators, and medical bill processing vendors are aware of the consequences of entering into such agree- ments and should take steps to prevent the entry into any such contractual relationships. If you have questions concerning any aspect of this advisory, please contact James Sheffield or Bobby Stokes. 2012—Flahive, Ogden & Latson July 2012 - VOLUME 17, NO. 7 In This Issue… Back to the Basics…………..…….…………………. p. 7 Get to Know FOL.……………………………..…..... p. 12
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FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON
DIVISION INVESTIGATING VOLUNTARY AND INFORMAL NETWORK VIOLATIONS
A PRIVILEGED ATTORNEY—CLIENT COMMUNICATION BY FLAHIVE, OGDEN & LATSON
ADVISORY NO. 483: The Texas legislature abol-ished all voluntary or informal networks except for the provision of pharmaceuticals through pharmacy benefit managers, effective January 1, 2011. See §413.0115 of the Texas Labor Code and Division Rules 133.4 and 133.5. Thus, except for PBMs, a carrier may not make a medical benefit payment below the Medical Fee Guidelines, unless the claim is a part of a certified health care network. Fla-hive, Ogden & Latson has learned that the Division is cur-rently conducting an investigation into whether some sys-tem participants may have entered into post-January 1, 2011 contracts with non-pharmacy benefit vendors that may constitute voluntary or informal networks.
Specifically, our firm has learned that the Division has requested that some system participants produce docu-mentation in conjunction with a complaint that it has re-ceived against an entity that allegedly sought to enter into contractual fee relationships with a number of carriers and physical therapy companies.
Reportedly, the company under investigation sought to convince some physical therapy providers to discount their services below the Medical Fee Guidelines. The company then allegedly sought to contract with various carriers or third party administrators to facilitate payment
for physical therapy services at a rate that was less than the Medical Fee Guidelines.
According to the Division, in some cases, the carriers were paying for services at a rate less than the Medical Fee Guidelines. In other cases, according to the Divi-sion, carriers were promised a refund from the vendor.
The Division’s current investigation is to ensure that entities are not engaging in voluntary or informal net-works in the provision of physical therapy services. Carriers, third party administrators, and other system participants may not contract to compensate health care providers for non-pharmacy benefits at rates be-low the Medical Fee Guidelines in the absence of a certified health care network contract. Carriers should ensure that their key staff members, third party admin-istrators, and medical bill processing vendors are aware of the consequences of entering into such agree-ments and should take steps to prevent the entry into any such contractual relationships.
If you have questions concerning any aspect of this advisory, please contact James Sheffield or Bobby Stokes.
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 2
Flahive, Ogden & Latson, a 19 lawyer firm, defends
contested workers’ compensation cases statewide
every day. The firm has represented insurance compa-nies and employers before the Texas Workers’ Compen-
sation agency for more than 50 years. For general ques-tions concerning the newsletter call: (512) 435-2234.
Flahive, Ogden & Latson
P.O. Box 201329
Austin, TX 78720
If you are interested in receiving FOLIO by email, please let us know. FOLIO is prepared for the exclusive use of
Flahive, Ogden & Latson clients only. It contains privi-leged communications and further sharing of this news-
letter (in either hard copy or electronic format) outside your company without the express written consent of
Flahive, Ogden & Latson is not permitted.
FO&L OFFICE HOURS
Monday—Friday
8:15 a.m.—4:45 p.m.
If you need to call after 4:45 p.m. please call Patsy Shel-ton at (512) 435-2234. She will be on duty until 6:00
p.m. daily.
Don’t wait until the last hour of the day for deadline
filing. Any faxes with information due must be received by 3:30 p.m. for any deadline handling for same day
delivery to the Division, and faxed according to the fax
directory listed on the last page of FOLIO. Furthermore, if you have a last minute deadline, call our office by
3:00 p.m. and speak with Sally Matthews or Patsy Shel-ton to advise that a last minute filing is necessary to
meet a deadline. We will be watching and waiting for the fax. Otherwise, last minute faxes could delay re-
ceipt. Our last daily run to the Division will be at 4:00 p.m., in order to get across town to meet their 5:00
p.m. closing time.
Pharmacy Closed Formulary Sample Notification Letters for
Legacy Claims
MEMORANDUM TO WORKERS’ COMPENSATION SYSTEM PARTICIPANTS FROM MATTHEW
ZUREK, EXECUTIVE DEPUTY COMMISSIONER FOR HEALTH CARE MANAGEMENT AND SYSTEM
MONITORING
AUSTIN—The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) adopted by rule a phar-macy closed formulary (closed formulary) in December 2010. Employees injured on or after September 1, 2011 are already subject to the closed formulary. However, beginning Septem-ber 1, 2013, prescriptions for employees who were injured before September 1, 2011 (known as “legacy claims”) will also be subject to the closed formulary.
Insurance carriers by rule are required to identify all legacy claims that have been prescribed a drug(s) excluded from the closed formulary after September 1, 2012 and send a written notification to the injured employee, prescribing doctor, and pharmacy (if known) informing them that the closed formu-lary will apply to these claims starting September 1, 2013. The TDI-DWC encourages insurance carriers to initiate noti-fication to these parties even sooner if possible to ensure that there is adequate time to discuss the possible application of the closed formulary to these claims allowing for a smooth transition.
The TDI-DWC has created sample notification letters that insurance carriers may use to fulfill the notification require-ments of 28 Texas Administrative Code §134.510, relating to Transition to the Use of the Closed Formulary for Claims with Date of Injury Prior to September 1, 2011. The TDI-DWC developed these sample notification letters as a cour-tesy to workers’ compensation system participants to encour-age timely and effective communication for these claims. In-surance carriers are under no obligation to use these sample templates to complete their notification process requirements.
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 3
Insurance carriers and system participants may also reference the pharmacy page on the TDI website at http://www.tdi.texas.gov/wc/pharmacy/index.html.
If you have questions regarding the sample notifica-tion letters, contact the TDI-DWC by calling Comp Connection for Health Care Providers at 1-800-372-7713 and select option 3 or e-mailing [email protected].
MEMORANDUM TO WORKERS’ COMPENSA-TION SYSTEM PARTICIPANTS FROM JEFF
CAROTHERS, DIRECTOR OF THE OFFICE OF WORKERS’ COMPENSATION COUNSEL
The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting com-ments on a proposed revised Medical Quality Review Process document related to the TDI-DWC Medical Quality Review Panel. The proposed new process is necessary to conform with the formally proposed new rules to 28 Texas Administrative Code (TAC) §§180.60, 180.62, 180.64, 180.66, 180.68, 180.70, 180.72, 180.74, 180.76, and 180.78.
The proposed revised process document is not a formal rule proposal and comments received will not be re-sponded to in accordance with the Texas Administra-tive Procedure Act. This proposed draft document is available on the TDI website at www.tdi.texas.gov/wc/rules/proposedrules/index.html.
The comment period on the proposed revised process document closes on Monday, August 27, 2012 at 5 p.m. Central Standard Time.
Public comments may be submitted by e-mailing infor-
Texas Department of Insurance, Division of Workers’ Com-pensation Workers’ Compensation Counsel, MS-4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1645 With any questions regarding the information in this memo, please contact Jim Dodds at (512) 804-4725 or [email protected].
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For those clients who are new or returning to Texas Workers’ Compensation, we are providing a series of articles called “Back to the Basics” covering the basic concepts of Texas law. This article covers temporary income benefits (TIBs). The following chart is a reference guide to previous topics covered:
An injured employee may be paid temporary income benefits (TIBs) if his compensability causes disability for more than seven (7) days and he has not reached maximum medical improvement. If the injured employee works more than one job, then he may be paid TIBs for lost wages from the other employers.
Amount of Temporary Income Benefits Temporary income benefits are equal to 70 percent of the difference between the injured employee’s average weekly wage (AWW) and the wages earned after the date of injury known as post-injury earnings (PIE). If the injured employee earns less than $8.50 per hour prior to the injury, then TIBs will be calculated at 75 percent of the difference between AWW and PIE for the first 26 weeks of TIBs payments.
The amount of temporary income benefits is subject to maximum and minimum benefit amounts. For example, if the injured employee’s AWW was $500 and the compensable injury caused the injured employee to lose all of his income, then the TIBs amount would be $350 a week:
AWW = $500; $500/40 hrs per week = $12.50 per hr; PIE = $0 AWW ($500) less PIE ($0) equals $500 lost wages. 70 percent of $500 (.70 x $500) equals $350.
After an injury, the injured employee may be released to return to work at modified duty. While performing modified work duties, the injured employee may still have lost wages and still be entitled to TIBs. For example:
AWW = $500; PIE = $200
AWW ($500) less PIE ($200) equals $300 lost wages 70 percent of $300 (.70 X $300) equals $210
Therefore, the injured employee receives $200 per week for working modified duties and $210 per week for TIBs.
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Topic FOLIO
Exclusive remedy provision, the Types of Benefits Recoverable Under Texas Workers’ Compensation, and General Definitions
March 2012, Volume 17, No. 3, pp. 3-4
Back to the Basics
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 8
When TIBs Begin and End An injured employee becomes eligible for TIBs after he has lost wages due to his compensable injury for 8 calendar days. The eighth day of lost wages is known as the accrual date. The injured employee is not required to loose wages for an entire day. For example, if the injured employee leaves work 2 hours early to attend physical therapy for his com-pensable injury, then this counts as a day of lost wages when determining whether the injured worker has reached his accrual date. The date the injury occurred, however, does not count as a day of disability towards the accrual date.
An injured employee is not entitled to a payment of TIBs for the first week of disability (“waiting period”) unless he has disability for two weeks or longer after disability begins. In that case, the waiting period is to be paid at the same time as the second week of disability benefits would be paid.
TIBs end at the earlier of:
the date the injured employee reaches maximum medical improvement (MMI);
the date after the date of injury the injured employee is physically able to earn his average weekly wage; or
at the end of 104 weeks from the injured employee’s 8th day of disability which is known as statutory MMI.
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AUSTIN, TX - Effective August 31, 2012, the Bryan Of-fice of the Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) will close perma-nently. Injured employees and other workers’ compensa-tion system participants in Brazos, Burleson, Grimes, Leon, Madison, Robertson, Walker and Washington coun-ties will receive customer service from the TDI-DWC Austin, Houston West, Lufkin and Waco field offices. On February 1, 2012, the TDI-DWC stopped providing unscheduled walk-in customer service in Bryan, but con-tinued to hold Benefit Review Conferences and Contested Case Hearings as scheduled. Effective August 31, 2012, the TDI-DWC will no longer schedule Benefit Review Conferences and Contested Case Hearings in Bryan, ex-cept as is necessary to ensure such proceedings are held not more than 75 miles from the claimant’s residence.
Injured employees should call the TDI-DWC at 1-800-252-7031 or the Office of Injured Employee Counsel (OIEC) at 1-866-393-6432 for assistance with their workers’ com-pensation claim.
TDI-DWC's Bryan Office Closes Permanently August 31,
2012
Get to Know FOL:
Attorney Paul Stone
Who is your favorite collegiate sports team? Vanderbilt University Commodores (Worst. Mascot. Ever.)
What is your favorite holiday? New Years’ Eve (coincidentally also my wife’s birthday).
What is the last movie you watched? Moonrise King-dom.
What makes you unique? My middle name (Butler) comes from my distant relative James Butler Bonham, one of the Defenders of the Alamo.
Are you afraid of the dark? Absolutely.
What are your nicknames? Pablo (I grew up in San An-tonio) and Raul (first job was bagging groceries, boss didn’t like me and intentionally misspelled my name on my official HEB nametag, and I was too scared of him to ask him to change it).
What is your favorite TV commercial? Anything with kids, kindly old folks, or military personnel.
What did you want to be when you were a kid? A doctor like my dad and grandad. Then I took Organic Chem-istry in college.
If you were not an attorney, what profession interests you? Youth camp counselor/activities director.
Would you rather be a Supreme Court Justice or a Day Time TV Judge? TV judge for sure.
What was your favorite subject in law school? Recess.
If you had to volunteer for disaster relief work, what would you select? Assisting displaced kids, kindly old folks, or military personnel.
What was the name of your favorite coach? Charlie Bog-gess, Alamo Heights High School basketball coach.
Favorite get away? Lopez Island, off the coast of Wash-ington State.
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 13
Best advice someone ever gave you? Measure twice, cut once.
If you had a chance to live one day again what would it be? Tie: the days in October 1996 and December 1998 when my kids were born.
What are your three favorite movies? Shawshank Re-demption, Lars and the Real Girl, The Usual Suspects.
What celebrity, living or dead, would you choose to be for a day? Bobby Stokes.
What is your favorite song to sing in the shower? “I Will Always Love You” (Whitney’s version, not Dolly’s).
If you were on death row, what would your last meal be? My wife’s veggie pizza, my daughter’s homemade chocolate cake, Blue Bell vanilla, and strong, black cof-fee.
What is your biggest fear? Chronic disease, incapacitat-ing injury, and/or irreversible cognitive dysfunction.
What is one item you can’t live without? Nothing. As the bumper sticker says, the best things in life aren’t things. OK, maybe my iPhone.
What is your favorite book? All 4 volumes of Robert Caro’s biography of Lyndon Johnson.
If you were a super hero, what would your super power be? The power to fly, thus avoiding traffic forever-more on I-35, Stemmons, LBJ, Katy Freeway, the Gulf Freeway, Loops 410 and 1604…
What are your nicknames? Kewins, and my Dad called me “Pud”
What is your favorite TV commercial? The Bush Beans commercials, with the golden retriever
What did you want to be when you were a kid? A Kin-dergarten teacher
If you were not a paralegal, what profession interests you? Breed & raise golden retrievers
Would you rather be a Supreme Court Justice or a Day Time TV Judge? (If I were a lawyer, Supreme Court Justice – to make a difference)
What was your favorite subject in law school? Torts in paralegal school
If you had to volunteer for disaster relief work, what would you select? Prepare or fix food, and deliver to those who need it.
What was the name of your favorite coach? I didn’t have coaches, I had ballet teachers
Favorite get away? New England in the fall
Best advice someone ever gave you? My Dad… “Never be afraid of work”
If you had a chance to live one day again what would it be? My wedding day [6/28/1986]
What are your three favorite movies? You’ve Got Mail, The Help, Harry Potter series
What celebrity, living or dead, would you choose to be for a day? Princess Diana
What is your favorite song to sing in the shower? Too sleepy in the mornings to sing
If you were on death row, what would your last meal be? Pasta Carbonara & chocolate cheesecake from The Cheesecake Factory
What is your biggest fear? Losing someone I love
What is one item you can’t live without? Coffee
What is your favorite book? The Bible
If you were a super hero, what would your super power be? To fly
Get to Know FOL:
Paralegal Karen Van Loo
Who is your favorite collegiate sports team? Tennessee Volunteers
What is your favorite holiday? Halloween!
What is the last movie you watched? The Hunger Games
What makes you unique? I’m an overgrown kid
Are you afraid of the dark? Yes!
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 14
Under the 90-day finality provisions, §408.123, Rule 130.12(b)(3), and Rule 141.1, regarding a Request for BRC, if a party disputes the first certification of MMI and IR within the 90-day period, by filing a DWC-45 in the manner pre-scribed by the Division, and the DWC-45 is approved, and there was no evidence that claimant withdrew his finality dispute, a subsequent request to cancel and reschedule the BRC by the requesting party will not effectively withdraw the MMI and IR dispute for purposes of the 90-day finality provisions.
Facts: Dr. S was appointed as a DD to determine MMI and IR. The claimant filed a Request for a BRC (DWC-45) to dispute Dr. S’s certification of MMI and IR before the 91st day, after which the certification was served on the claimant by verifiable means. The CCH issue was whether the first certification of MMI and assigned impairment rating from Dr. S became final under §408.123. The evidence showed that the claimant’s filed a DWC-45 on July 22, 2011, which was approved by the Division, and a BRC was scheduled for October 4, 2011. On September 27, 2011, the claimant filed a “Request to Cancel BRC.” In its motion, the claimant noted the October 4, 2011, BRC and requested the BRC be can-celled. The motion did not specifically notify the Division that claimant was withdrawing his dispute of the first certifi-cation of MMI and IR. On September 30, 2011, the claimant requested the Division to send an LOC to Dr. S, because the DD had commented that he did not have all the medical records. The Division denied the request for LOC. A re-scheduled BRC was held on November 29, 2011, on the issue of whether the first certification of MMI and IR became final under §408.123. The claimant’s position at the BRC was that he disputed the first valid DWC-69 from Dr. S on July 22, 2011. The carrier’s position was that the 90-day Rule applied because claimant’s attorney withdrew his request for a BRC, and he had therefore waived the dispute of the DD’s certification. At the CCH, the carrier argued that to al-low parties to file DWC-45s disputing the first certification of MMI/IR, and then cancel the scheduled BRC, and not have another BRC scheduled within the 90 days required by rule, is a circumvention of the holding in APD 111006-s, decided September 15, 2011], and contrary to the purpose of the rule. The resolution of the finality issue involved whether the cancellation or rescheduling of a BRC within 10 days after the notice of the BRC setting was received by the party requesting the BRC is a withdrawal of that party’s dispute of the first valid certification of MMI and IR. The hearing officer commented that after the dispute was withdrawn and the BRC cancelled, the 90 days from the date of certification ran and the first certification became final. Accordingly, the Hearing Officer found that the first certifica-tion did become final. Claimant appealed the hearing officer’s finality determination. The carrier responded, urging af-firmance.
Holding: Reversed and rendered. The Appeals Panel noted that under §408.123(e), an employee’s first valid certifica-tion of MMI and IR is final if the certification is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. And, under Rule 130.12(b), the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means and that only a carrier, injured employee or its representative may dispute a first certification of MMI/IR by requesting a BRC or by requesting the appointment of a designated doctor, if one has not been appointed. The Appeals Panel noted that under Rule 130.12(b)(3) a dispute may not be revoked or withdrawn to allow the first valid certification of MMI and/or the first valid assignment of IR to become final except by agreement of the parties.
Continues next page
Texas Division of Workers’ Compensation
Appeal No. 120857-s
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 15
The Appeals Panel noted that under Rule 141.1, regarding a Request for BRC, a DWC-45 shall be made in the form and manner required by the Division, and a request that meets the requirements of Rule 141.1(d) is a complete DWC-45, and if the request if complete and otherwise appropriate for a BRC, the Division will schedule a BRC. Under Rule 141.2(a)(2), the Division may cancel or reschedule a BRC at the request of the party who requested the BRC. The Appeals Panel noted that in its prior decision, APD 111006-s, it held that the carrier did not timely dispute a first valid certification of MMI and IR because it did not file a DWC-45 in a manner prescribed by the Division. The DWC-45s in question in-cluded instruction “not schedule a BRC. “ The DWC-45s was not approved and no BRC was scheduled. Under Rule 141.1, after a complete request is submitted, approved, and a BRC scheduled, the party has established a dispute of the first certification of MMI and/or IR in accordance with §408.123(e), effective as of the date the request was filed.” By comparison, the Appeals Panel noted that the evidence in this case shows that claimant, within the 90-day period, filed a DWC-45 in a manner prescribed by the Division, and the DWC-45 was approved, and there was no evidence that claim-ant withdrew his finality dispute. The Appeals Panel found the claimant’s motion to cancel the BRC was nothing more than a request to reschedule the BRC to a later date. The Appeals Panel found that the hearing officer erred in finding that claimant withdrew his dispute of the DD’s certification of MMI/IR and that the first certification became final. Ac-cordingly, the Appeals Panel reversed the hearing officer’s decision that the first certification of MMI/IR by Dr. S be-came final and rendered a new decision that the first certification of MMI/IR did not become final under §408.123.
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 16
When rating a shoulder injury that results in distal clavicle arthroplasty, the certifying doctor must rate the shoulder under Table 27, Page 3/61 of the AMA Guides, or provide an explanation for failure to rate the surgical procedure.
Facts: Claimant disputed the impairment rating. Dr. M-D was appointed by the Division as DD to determine MMI and IR. In his Background Information section of his decision, the hearing officer stated that the claimant injured her neck and right shoulder. The evidence reflects that the claimant underwent three right shoulder surgeries (including a distal clavicle resection) in April 2010, September 2010, and March 2011, performed by Dr. M. Both Dr. M, and the desig-nated doctor, Dr. M-D, certified that the claimant reached MMI on August 5, 2011. Dr. M assigned 6% IR (rating only the right shoulder). Dr. M. found that the shoulder ROM measurements were invalidated, but he rated a distal clavicle resection for a 10% UE impairment based on Table 27 of the AMA Guides, which translates to 6% whole person im-pairment. The DD, Dr. M-D assigned 16% IR (rating the cervical spine 0%, the right elbow 3% for ROM deficits, and the right shoulder 27%). Dr. D-M’s right shoulder impairment was based upon Figures 38, 41, and 44, on Pages 3/43, 3/44, and 3/45, respectively which resulted in 27% upper extremity (UE) impairment. With respect to Dr. D-M’s certifi-cation, the self-insured contended at the CCH that the certifying doctor must measure and document passive ROM under the AMA Guides rating criteria or his report is invalid. The hearing officer resolved the impairment rating issue by de-ciding that the claimant reached MMI with 6% impairment rating, as certified by the treating doctor, Dr. M. The claim-ant appealed, contending that the hearing officer erred in not adopting the certification of MMI and IR of the DD, Dr. M-D. The self-insured responded, urging affirmance.
Holding: Reversed and remanded in part and reversed and rendered in part. The Appeals Panel reversed and rendered the date of MMI to adopt the MMI date assigned by both the DD and the treating doctor. For impairment rating, the Ap-peals Panel noted that the self-insured’s argument regarding the measurements of passive ROM was contrary to the pro-visions of the AMA Guides. The Appeals Panel referred to page 3/15, to show that active ROM should be measured, and active ROM takes precedence over passive ROM. The Appeals Panel however noted that Dr. M-D did not assign a rating under Table 27, page 3/61 for distal clavicle arthroplasty, or provide an explanation for failure to rate the surgical procedure. The Appeals Panel referred to its prior decision APD 091820, where it reversed the hearing officer’s IR de-termination because the certifying doctor assigned the IR for a shoulder injury solely based on decreased ROM and failed to rate the surgery under Table 27 or to provide an explanation for the failure to rate the surgical procedure. Like-wise, in this case, because Dr. M-D failed to rate the claimant’s surgical procedure under Table 27, the Appeals Panel reversed that portion of the hearing officer’s finding of fact. The Appeals Panel noted that Dr. M certified that the claim-ant reached MMI with 6% IR. The Appeals Panel noted that Dr. M failed to assign an impairment for a cervical spine injury, which could have included 0% impairment. The Appeals Panel found that because Dr. M failed to rate the entire compensable injury, including a cervical injury, the hearing officer’s finding that the impairment evaluation of Dr. M was carried out in accordance with the AMA Guides and that the assigned IR of Dr. M is supported by a preponderance of the evidence is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The Appeals Panel therefore reversed the hearing officer’s determination that the claimant’s IR is 6%, and be-cause there are no other IR evaluations that can be adopted, the Appeals Panel remanded the IR issue to the hearing offi-cer for further action consistent with this decision.
Texas Division of Workers’ Compensation
Appeal No. 120304
FOLIO CLIENT NEWSLETTER BY FLAHIVE, OGDEN & LATSON 17
Regarding extent of injury, if there is an immediate diagnosis of a strain, and no expert medical evidence that affirma-tively states that a claimant does not have a strain, then contrary to Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007), expert medical evidence is not required to establish that the compensable injury includes a strain.
Facts: The claimant testified that she was coming down some icy stairs, she slipped, fell, twisted trying to catch herself, and landed on her back. The parties stipulated that the claimant “sustained a compensable injury.” Dr. RB was ap-pointed by the Division as DD to determine MMI, IR, disability, and extent of injury. The hearing officer commented that the claimant failed to provide expert medical evidence correlating the conditions/diagnoses with the mechanism of injury. The hearing officer determined that to the extent claimant suffered from these conditions/diagnoses, they are the result of ordinary diseases of life that were not aggravated by the incident. The hearing officer also noted that the self-insured’s utilization review agent’s pre-authorization of outpatient left shoulder acromioplasty, distal clavicle resection, and rotator cuff repair had no probative value relevant to the extent issue. The hearing officer determined that: (1) the compensable injury did not extend to a cervical strain, a cervical disc protrusion/herniation at C5-6, a thoracolumbar strain, Syrinx with Arnold-Chiari malformation, left shoulder impingement syndrome and headaches; claimant did not have disability from April 16, 2010, through the date of the CCH; MMI was on March 11, 2010; and the claimant’s im-pairment rating is zero percent (0%). The claimant appealed the hearing officer’s extent of injury, MMI, and IR, con-tending, among other things, an aggravation injury. The self-insured responded, urging affirmance.
Holding: Affirmed in part, reversed and rendered in part, and reversed and remanded in part. The Appeals Panel af-firmed the determinations on disability and that the compensable injury did not extend to a cervical disc protrusion/herniation at C5-6, Syrinx with Arnold-Chiari malformation, left shoulder impingement syndrome and headaches as this was supported by the evidence. However, on the extent-of-injury findings regarding cervical strain and throacolumbar strain, the Appeals Panel noted the long-established general rule requiring expert medical evidence as to medical condi-tions outside the common knowledge, as stated in Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). However, the Ap-peals Panel disagreed with the hearing officer’s analysis that the claimant failed to provide expert medical evidence cor-relating the cervical and thoracic strains with the compensable injury. The Appeals Panel referenced its prior deci-sions—APD 992946 (shoulder strain) and APD 952129 (back strain)—that expert medical evidence is not required for strains. The Appeals Panel noted that claimant was originally diagnosed on the date of injury with a cervical and upper arm strain. And that a subsequent doctor, diagnosed a cervical strain, thoracic strain and left shoulder strain/sprain. The Appeals Panel also noted that there was no doctor that affirmatively stated that claimant did not have a cervical and/or thoracic strain. The Appeals Panel found that the hearing officer’s determination that the compensable injury did not extend to a cervical strain and a thoracolumbar strain was so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, and reversed the hearing officer’s determination and rendered a new deci-sion that the compensable injury extends to a cervical strain and a thoracic strain. Regarding MMI and IR, the Appeals Panel reversed the hearing officer’s determination that the claimant reached MMI on March 11, 2010, with a zero percent IR, and because no certifying doctor rated the compensable injury, the issues of MMI and IR were remanded to the hearing officer.
Texas Division of Workers’ Compensation
Appeal No. 120383
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G Q CORNER Q: The designated doctor certified the claimant at MMI on 4/1/11 with a zero percent impairment rating. The claimant did not dispute within 90 days. The claim-ant had surgery on 4/5/12 and has now recovered from the surgery. The treating doctor stated that he was going to send the claimant for a certification of MMI. Is the carrier liable for the recent referral for a certification of MMI? Once the carrier receives the new certification, does the carrier need to do anything?
A: The carrier is liable for the exam if the desig-nated doctor’s certification was the first certification. See Texas Labor Code Section 408.0041(f-2). Note that this provision only applies when the designated doctor provides the first certification. You indicated that the claimant did not dispute the designated doctor’s certifi-cation within 90-days, but the 90-days only begins to run when the claimant is sent the certification by verifi-able means. If it was, then you should advise the claim-ant on notice that the 4/1/11 designated doctor’s certifi-cation became final pursuant to the 90-day rule unless an exception applies. If the Division attempts to re-schedule another designated doctor exam on MMI/IR, the carrier should object by requesting an expedited CCH on the basis that the initial certification by the des-ignated doctor is final in the absence of a showing of an applicable exception.. See 28 TAC Rule 127.1(e).
Q: Is an employer permitted to pay for medical care for work-related injuries?
A: Yes. Rule 133.20(j) provides that a healthcare pro-vider may elect to bill the injured employee's employer if the employer has indicated a willingness to pay. The health-care provider, however, gives up some remedies that it has against the carrier should the provider decide to bill the em-ployer.
Q: The designated doctor, based upon an FCE, deter-mined the employee had an ability to work during the 8th quarter. The treating doctor continues to keep the em-ployee completely off work. Despite the DD report, the car-rier is currently paying supplemental income benefits for the 9th quarter based upon the employee's assertion he has a complete inability to work. The carrier would like to re-evaluate its position for the 10th quarter. Can the carrier rely upon the DD's report to deny the 10th quarter?
A: If there has been no substantial or significant change in the employee's compensable injury since the designated doctor’s evaluation, then the carrier may utilize the desig-nated doctor’s opinion to evaluate entitlement to the 10th quarter.
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G Q CORNER Q: Carrier receives first written notice of injury on Sunday 7/1/12. When does the carrier begin counting for the 15-day deadline?
A: The carrier is deemed to have received first written notice of injury on Monday, 7/2/12 so the carrier counts Tuesday 7/3/12 as day one for the 15-day deadline.
Q: The treating doctor does not timely or properly submit documentation for pre-authorization which impedes or delays the injured employee's ability to return to work in an expeditious time frame. Can the adjuster authorize the treat-ment to help avoid the pre-authorization delays?
A: One must be a licensed utilization review agent in order to be able to approve or deny pre-authorization for medical care. If the adjuster is a licensed utilization review agent, then he or she can approve or deny such pre-authorization requests. If the adjuster is not a licensed utilization review agent and he or she makes a decision concern-ing pre-authorization, then the adjuster is acting beyond the scope of his or her license and is committing an administra-tive violation.
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KEY TASK DIRECTORY To help expedite your email or faxed information to the correct area within FO&L and get it to the re-sponsible person at the earliest time, use the following fax directory. Please remember the 3:30 p.m. receipt deadline for material required to be date stamped at the Division. Material received after 4:00 p.m. does not permit time to deliver it across town prior to the DWC close.
